A Report on the Surveillance Society Full Report

A Report on the
Surveillance Society
For the Information Commissioner by the Surveillance Studies Network
September 2006
Full Report
1
Credits
Editor:
David Murakami Wood
Report Authors:
Kirstie Ball
David Lyon
David Murakami Wood
Clive Norris
Charles Raab
Expert Reports:
Louise Amoore
Kirstie Ball
Stephen Graham
Nicola Green
David Lyon
Jason Pridmore
Clive Norris
Charles Raab
Ann Rudinow Saetnan
Critical Readers:
Sarah Earle
Graham Sewell
Additional Material:
Emily Smith
Administrative Support
Anne Fry
Business Development:
Mark Siddoway / Knowledge House
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Index
Section
Title
Page
Part A
1
2
3
4
5
6
Introducing the Surveillance Society
Surveillance Society: Summary, History, Definitions
What is Wrong with a Surveillance Society?
Defining Surveillance; Tracing Surveillance Society
Perspectives on the Surveillance Society 1: Issues
Perspectives on the Surveillance Society 2: Processes
A Guide to the Report
1
1
2
3
6
8
10
Part B
7
8
9
10
11
A Survey of the Surveillance Society
Introduction
The Context of the Surveillance Society
Surveillance Technologies
Surveillance Processes
The Social Consequences of Surveillance
11
11
11
15
30
37
Part C/1
12
13
14
15
16
17
18
19
20
21
22
23
23
25
A Week in the Life of the Surveillance Society 2006
Introduction
At the Airport
Shopping
At Home
In the City
Crime and Society
The Call Centre
Health
School and After
Family
The Call Centre Again
Fraud
Back in the City
Conclusions
48
48
48
50
51
52
53
55
56
57
58
58
59
60
61
Part C/2
26
27
28
29
30
31
32
33
34
35
36
37
38
39
Glimpses of Life in the Surveillance Society 2016
Introduction
Identity Control
Border Crossing
Managing Brandscapes
Cashless Shopping
Keeping Tabs on Kids
Total Social Solutions?
Driving Change
Friendly Flying Eyes in the Sky
The Unidentified Underclass
Virtual Tracking
Your Life is Our Business
Looking after You
Conclusion: The Hall of Mirrors
63
63
64
64
65
66
66
67
68
68
69
70
71
72
73
Part D
40
Regulating the Surveillance Society
Introduction
75
75
ii
41
42
43
44
45
iii
What’s Wrong with Regulation?
The Current State of Regulation
Regulatory Instruments: Pros and Cons
General Problems Concerning Instruments
Options for Future Regulation
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Part A:
Introducing the
Surveillance Society
1. Surveillance Society: summary, history, definitions
1
1.1.
We live in a surveillance society. It is pointless to talk about surveillance society
in the future tense. In all the rich countries of the world everyday life is suffused
with surveillance encounters, not merely from dawn to dusk but 24/7. Some
encounters obtrude into the routine, like when we get a ticket for running a red light
when no one was around but the camera. But the majority are now just part of the
fabric of daily life. Unremarkable.
1.2.
To think in terms of surveillance society is to choose an angle of vision, a way of
seeing our contemporary world. It is to throw into sharp relief not only the daily
encounters, but the massive surveillance systems that now underpin modern
existence. It is not just that CCTV may capture our image several hundred times a
day, that check-out clerks want to see our loyalty cards in the supermarket or that we
need a coded access card to get into the office in the morning. It is that these systems
represent a basic, complex infrastructure which assumes that gathering and
processing personal data is vital to contemporary living.
1.3.
Conventionally, to speak of surveillance society is to invoke something sinister,
smacking of dictators and totalitarianism. We will come to Big Brother in a moment
but the surveillance society is better thought of as the outcome of modern
organizational practices, businesses, government and the military than as a covert
conspiracy. Surveillance may be viewed as progress towards efficient administration,
in Max Weber’s view, a benefit for the development of Western capitalism and the
modern nation-state.1
1.4.
Some forms of surveillance have always existed as people watch over each other
for mutual care, for moral caution and to discover information covertly. However,
from about 400 hundred years ago, ‘rational’ methods began to be applied to
organizational practices, that steadily did away with the informal social networks
and controls on which everyday business and governing previously relied. People’s
ordinary social ties were made irrelevant so that family connections and personal
identities would not interfere with the smooth running of these new organizations.
But the good news was that by this means citizens and eventually workers could
expect that their rights would be respected because they were protected by accurate
records as well as by law.
1.5.
When the nation-state was in its heyday, and departments proliferated, after
World War Two, systems started to creak and even crumble under pressure. But help
was at hand in the shape of new computer systems that reduced labour intensivity
and increased the reliability and volume of work that could be accomplished. In
time, with new communications systems, now known together as ‘information
technology’ (IT), bureaucratic administration could work not only between
Gerth, H. and Wright Mills, C. (1964) From Max Weber, New York: .
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departments of the same organisation, but between different organisations and,
eventually, internationally. Something very similar is also true of businesses, first
keeping records, then networking, and then going global, courtesy of IT. Yet even
such ‘joined-up’ activities relate to technical and modern desires for efficiency,
speed, control and coordination.
1.6.
Impersonal and rule-centred practices spawned surveillance. Essential to
bureaucracy is the oversight of subordinates and creation of records within the
system. Business practices of double-entry book-keeping and of trying to cut costs
and increase profit accelerated and reinforced such surveillance, which had an
impact on working life and consumption. And the growth of military and police
departments in the twentieth century, bolstered by rapidly developing new
technologies, improved intelligence-gathering, identification and tracking
techniques. But the main message is that surveillance grows as a part of just being
modern.
2. What is wrong with a surveillance society?
2
2.1.
Understanding surveillance society as a product of modernity helps us avoid two
key traps: thinking of surveillance as a malign plot hatched by evil powers and
thinking that surveillance is solely the product of new technologies (and of course
the most paranoid see those two as one). But getting surveillance into proper
perspective as the outcome of bureaucracy and the desire for efficiency, speed,
control and coordination does not mean that all is well. All it means is that we have
to be careful identifying the key issues and vigilant in calling attention to them.
2.2.
Surveillance is two-sided, and its benefits must be acknowledged. Yet at the same
time risks and dangers are always present in large-scale systems and of course power
does corrupt or at least skews the vision of those who wield it.
2.3.
Take risks and dangers first. These are something we have become more used to
since the public realisation dawned in the later twentieth century that ‘progress’ is a
mixed blessing. Every increase of ‘goods’ production, as Ulrich Beck pithily put it,
also means a greater output of ‘bads.’2
2.4.
In addition to the environmental ones uppermost in Beck’s mind, some of those
‘bads’ are social and political ones. Large-scale technological infrastructures are
peculiarly prone to large-scale problems. And especially where computer systems
are concerned, one inadvertent or ill-advised keystroke can easily cause havoc.
Think of the release for ‘research’ purposes, of twenty million of ordinary peoples’
online search queries from AOL in August 2006. Supposedly shorn of identifiers, it
took only moments to start connecting search records with names.3 This report looks
at some problems of large-scale surveillance systems.
2.5.
It is equally important to remember the point about the corruptions and skewed
visions of power. Again, we do not have to imagine some wicked tryant getting
access keys to social security or medical databases to see the problem. The
corruptions of power include leaders who appeal to some supposed greater good
(like victory in war) to justify unusual or extraordinary tactics.
Beck, U. (1992) The Risk Society, Newbury Park CA: Sage.
See: Barbaro, A. and Zeller, T. ‘A face is exposed for AOL searcher no. 4417749’, New York Times, 9 August 2006.
http://select.nytimes.com/gst/abstract.html?res=F10612FC345B0C7A8CDDA10894DE404482/
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2.6.
In the USA, Japanese Americans were singled out for internment during World
War Two through the – normally illegal – use of census data. More recently, many
Muslim Americans are branded as unfit for travel using no-fly lists or are otherwise
subject to racial profiling, condemned in other contexts for its manifest unfairness.4
Where white Americans may be able to circumvent airport delays by making slight
changes to their names when reserving their flights, this is much harder for people
whose names seem ‘Arab’ or ‘Muslim’.5 Any ‘exceptional circumstances,’
especially when the exceptions seem permanent as in an endless ‘war on terror’ are
ones that require special vigilance from those who care about human and civil rights.
2.7.
Beyond this, in the world of high technology and global commerce unintended
consequences of well-meaning actions and policies abound. For example, in order to
remain competitive, corporations, we are told ‘know their customers’ and thus pitch
their advertising and even locate their plants and stores appropriately. No one
suggests that the store manager wishing to lure only the most creditworthy customers
is devious in obtaining credit check services from various credit referencing
agencies. It simply makes sense in the quest for greater profitability. But the results –
the unintended consequences – of sifting through records to create a profitable
clientele is that certain groups obtain special treatment, based on ability to pay, and
others fall by the wayside.6
2.8.
Three other points should be made about ‘what’s wrong with surveillance society.
2.8.1.
The first follows from what was said about exceptional circumstances
and unintended consequences. It is imperative to scrutinize systems that permit
gross inequalities of access and opportunity to develop. Of course, as all true
surveillance systems are meant to discriminate between one group and another,
this is difficult, but the problem can at least be brought into the open.
Unfortunately, the dominant modes of surveillance expansion in the twenty-first
century are producing situations where distinctions of class, race, gender,
geography and citizenship are currently being exacerbated and institutionalized.
Our report details these.
2.8.2.
Secondly, and for social cohesion and solidarity most profoundly, all of
today’s surveillance processes and practices bespeak a world where we know
we’re not really trusted. Surveillance fosters suspicion.7 The employer who
installs keystroke monitors at workstations, or GPS devices in service vehicles
is saying that they do not trust their employees. The welfare benefits
administrator who seeks evidence of double-dipping or solicits tip-offs on a
possible ‘spouse-in-the-house’ is saying they do not trust their clients. And
when parents start to use webcams and GPS systems to check on their
teenagers’ activities, they are saying they don’t trust them either. Some of this,
you object, may seem like simple prudence. But how far can this go? Social
relationships depend on trust and permitting ourselves to undermine it in this
way seems like slow social suicide.
4
See: Amnesty International USA (2004) Threat and Humiliation: Racial Profiling, Domestic Security and Human Rights in the
USA, New York: Amnesty International USA, http://www.amnestyusa.org/racial_profiling/report/rp_report.pdf
5
Kehaulani Goo, S., ‘Hundreds Report Watch-List Trials’ 21 August 2004, http://www.washingtonpost.com/ac2/wpdyn/A20199-2004Aug20?language=printer
6
Lace, S (2005) The Glass Consumer, Bristol UK: Policy Press; Danna, A. and Gandy, O. (2002) ‘All that glitters is not gold:
Digging beneath the surface of data-mining’ Journal of Business Ethics, 40: 373-386; Lyon, D. (ed.) (2003) Surveillance as
Social Sorting: Privacy, Risk and Digital Discrimination, London and New York: Routledge.
7
This is discussed in: Lyon, D. (2003) Surveillance after September 11, Cambridge UK: Polity Press, 45-48, 142ff.
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2.8.3.
The final question for surveillance society has to do with a nagging worry
that surveillance, especially that associated with high technology and antiterrorism, distracts from alternatives and from larger and more urgent questions.
We may ask whether this is really the best way of pursuing these goals.
Unfortunately, and without succumbing to cynicism, we have to note that
procuring new technology surveillance supports the economy, helps to keep out
‘undesirables,’ yields the appearance of definite action, gives the impression
that the exits are sealed and supports a business-as-usual attitude.
3. Defining surveillance; tracing surveillance society
3.1.
Definitions are vital, especially with a controversial word like surveillance. Often
thought of in rather specific, targeted terms, in reality it is much more. Rather than
starting with what intelligence services or police may define as surveillance it is best
to begin with a set of activities that have a similar characteristic and work out from
there. Where we find purposeful, routine, systematic and focused attention paid to
personal details, for the sake of control, entitlement, management, influence or
protection, we are looking at surveillance.
3.2.
To break this down:
•
•
•
•
The attention is first purposeful; the watching has a point that can be justified, in
terms of control, entitlement, or some other publicly agreed goal.
Then it is routine; it happens as we all go about our daily business, it’s in the
weave of life.
But surveillance is also systematic; it is planned and carried out according to a
schedule that is rational, not merely random.
Lastly, it is focused; surveillance gets down to details. While some surveillance
depends on aggregate data, much refers to identifiable persons, whose data are
collected, stored, transmitted, retrieved, compared, mined and traded.
3.3.
The personal details in question may be of many kinds, including CCTV images,
biometrics such as fingerprints or iris scans, communication records or the actual
content of calls, or most commonly, numerical or categorical data. Because so many
data are of the last type referring to transactions, exchanges, statuses, accounts and
so on, Roger Clarke has called this ‘dataveillance.’8 Dataveillance monitors or
checks people’s activities or communications in automated ways, using information
technologies. It is far cheaper than direct or specific electronic surveillance and thus
offers benefits that may sometimes act as incentives to extend the system even
though the data are not strictly required for the original purpose.
3.4.
Most surveillance today is of the kind just described – though it must not be
forgotten that face-to-face human surveillance is far from extinct – and is carried out
overwhelmingly by large organizations that have an interest in one of the goals
mentioned. But the falling costs of surveillance equipment also induces others to
engage in automated activities that include watching, observing, and even snooping
and voyeurism. Some peer-to-peer surveillance occurs as when spouses use
cellphones to find out about each others’ activities (and again, trust has eroded in
8
Clarke, R. (2006[1997]) ‘Introduction to dataveillance and information privacy’,
http://www.anu.edu.au/people/Roger.Clarke/DV/Intro.html#DV
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such cases), and watching from below – or ‘sousveillance’ – may also occur when
ordinary people grasp the cameras and watch the watchers.9
3.5.
What, then, of surveillance as an adjective, to describe a kind of society? Where
did the idea of surveillance society come from? Not surprisingly, it started cropping
up after the first wave of computerization of organizations in the 1970s. At that time,
the key metaphor was ‘Big Brother’ from George Orwell’s famous novel NineteenEighty-Four. By the 1980s a number of serious studies was building on those of the
1970s10 and some started to use the term ‘surveillance society.’ Gary T. Marx
invoked Nineteen-Eighty-Four in what was the first social science reference to
computer-based ‘surveillance society’ in 1985 and this was followed by Oscar
Gandy’s comments on ‘bureaucratic social control’ – a reference to Max Weber’s
work, also updated for digital times, that also warned about ‘surveillance society’.11
3.6.
Interestingly, our image of state surveillance is often shaped by novels and films.
Prominent examples are Franz Kafka’s The Trial (1914), in which the enigmatic
figure of Josef K (what happened to his name?) confronts unknown accusers on
unclear charges, or George Orwell’s Nineteen-Eighty-Four (1948) that paints a
terrifying picture of detailed, damning surveillance by the nation-state, personified
by the sinister, looming figure of ‘Big Brother’. These highlight the crucial role of
information (or lack of it, for the surveilled) within bureaucratic governments,
alongside the constant threat of totalitarianism.
3.7.
What neither Kafka nor Orwell could have foreseen was the rise of computers
and the wholesale digitizing of administration. After all, the ‘silicon chip’ did not
appear for another thirty years after Nineteen-Eighty-Four. From the 1970s,
however, computers were to make for a massive expansion in the ways in which
surveillance and bureaucratic control occurred. While the dilemmas of surveillance
are brilliantly explored in The Conversation (1974) this movie relies primarily on
conventional audio-surveillance and eavesdropping. More recent films such as The
Net (1995), Enemy of the State (1998), and Minority Report (2002) deal more
directly with IT-based surveillance. However, movies, being sensational, depend on
their success on exploiting technological capabilities, rather than on the actual
everyday consequences of living in surveillance societies.
3.8.
This is why returning to the social sciences is helpful. Whatever changes have
taken place in business and government since Weber’s time – computerization,
networking, globalization and even ‘relationship management’ – the underlying
principles still stand. This is why Weber’s views on the modern world of
surveillance are so telling. He saw this surveillance, keeping detailed records,
collating information, limiting access to certain eligible persons, not as mere
evidence of ‘progress,’ but as deeply ambiguous. At worst, he predicted that the
efficient but soulless world of bureaucratic organization would become an ‘iron
cage.’ Ordinary people would feel trapped in an impersonal, uncaring system. Add
the malicious indifference of Josef K’s interrogators or the whims of a ruthless
dictator like ‘Big Brother’ and you have a recipe for repression as well.
9
Mann, S., Nolan, M and Wellman, B. (2003) ‘Sousveillance: inventing and using wearable computing devices for data
collection in surveillance environments’, Surveillance & Society 1(3): 331-355.
10
Such as: Rule, J. (1973) Private Lives, Public Surveillance, London: Allen Lane. The best-known in the 1980s were probably:
Burnham, D. (1983) The Rise of the Computer State, New York: Vintage Books; and Marx, G.T. (1988) Undercover: Police
Surveillance in America, Berkeley: University of California Press.
11
Marx, G.T. (1985) ‘The surveillance society: the threat of 1984-style techniques’ The Futurist, June: 21-26; Gandy, O. (1989)
‘The surveillance society: information technology and bureaucratic social control’ Journal of Communication, 39:3.
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3.9.
But we also have to go beyond Weber, because not only is surveillance society
today highly technological, it has long ago spilled over the edges of the state and into
corporations, communications and even entertainment (indeed, Big Brother a TV
series shows how surveillance is domesticated and becomes participatory in new
ways12). Surveillance is bound up with what we call ‘governance.’ This goes far
beyond what governments do; the ‘computer state’ is now a dated idea. Governance
refers to how society is ordered and regulated in manifold ways. Governance
controls access, opportunities, chances and even helps to channel choices, often
using personal data to determine who gets what. Actuarial practices all-too-often
take over from ethical principles.
4. Perspectives on the Surveillance Society 1: Issues
4.1.
4.2.
4.3.
We turn now to an inventory of issues and processes that relate to the surveillance
society as it has just been outlined. This is intended as a catalogue or check-list of
important things to consider when discussing the surveillance society. It is important
to note that although these vary in time and place in some form they are crucially
significant for understanding the basic contours of surveillance society.
Privacy, ethics, human rights.
4.2.1.
Since the 1970s, much reflection and legal discussion of surveillance has
occurred, producing data protection laws in Europe and privacy law elsewhere.
Such regulation adopts a specific understanding of privacy. Although the ‘Fair
Information Principles’ (FIPs)13 that have evolved and have received
widespread assent work from a basic understanding of the importance of
privacy to individual citizens, it has proved difficult to persuade policy-makers
of the salience of the social dimensions of privacy14 let alone of the need to
confront problems associated with the surveillance society as such. It is also the
case that to jolt a legal process into action, the individual has to know
something’s wrong, identify what it is and know where to take the complaint
and how to find redress.
4.2.2.
Surveillance society poses ethical and human rights dilemmas that
transcend the realm of privacy. Without minimizing the human and democratic
need for privacy, and acknowledging that if only large organizations complied
fully with data protection and privacy legislation many surveillance society
problems would be reduced, we insist that those problems deserve to be
approached in other ways. Ordinary subjects of surveillance, however
knowledgeable, should not be merely expected to have to protect themselves.
Three key issues are as follows:
Social exclusion, discrimination.
4.3.1.
12
As we show in this report, surveillance varies in intensity both
geographically and in relation to social class, ethnicity and gender. Surveillance,
privacy-invasion and privacy-protection differentiate between groups,
advantaging some and, by the same token, disadvantaging others. It is not
because of surveillance, of course, that the nation-state today feels it can no
longer offer the kinds of social security that it once aspired to, or that it now
See: McGrath, J. (2004) Loving Big Brother, London: Routledge; Andrejevic, M. (2004) Reality TV: The Work of Watching,
Lanham MD: Rowman and Littlefield.
13
FIPs are the North American equivalent of European ‘data protection principles.’
14
See the excellent treatment of the sociality of privacy in: Regan, P. (1005) Legislating Privacy: Technology, Social Values, and
Public Policy, Chapel Hill: University of North Carolina Press.
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downscales its aims to providing only some forms of basic individual safety.15
Rather, surveillance grows alongside these changes, usually supporting or at
least enabling them. As well, the agencies of individual safety can easily be
outsourced.
4.3.2.
4.4.
4.5.
Cradle-to-grave health-and-welfare, once the proud promise of socialdemocratic governments, has been whittled down to risk management and –
here’s where the surveillance society comes in – such risk management
demands full knowledge of the situation. So personal data are sought in order to
know where to direct resources.16 And because surveillance networks permit so
much joining-up, insurance companies can work with police, or supermarkets
can combine forces with other data-gatherers so much more easily. The results,
as we shall see, are that all-too-often police hot-spots are predominantly in nonwhite areas, and supermarkets are located in upscale neighbourhoods easily
reached by those with cars.
Choice, power and empowerment.
4.4.1.
So what say do ordinary citizens, consumers, workers and travelers have
in shaping the surveillance society? It must be again stressed that the
surveillance society is not a conspiracy, and neither are the outcomes
technologically determined. Ordinary people can and do make a difference
especially when they insist that rules and laws be observed, question the system
or refuse to have their data used for purposes for which they have insufficient
information or about which they harbour doubts.
4.4.2.
But how far can individuals and groups choose their exposure to
surveillance and limit personal information collected and used? When the
surveillance system is infrastructural, and when its workings are shrouded in
technical mystique, it is very hard indeed to make a significant difference. For
instance, not until some identity theft scandal breaks do consumers become
aware of the extent of personal profiling carried out by major corporations.17
Even then, the focus tends to be on security – how to prevent similar fraud –
rather than on curbing the power of businesses and state agencies
promiscuously and prodigiously to process so much data. Although as we argue
later, individuals are not alone in surveillance regulation, which may depend
heavily on specialised agencies and commissions in countries with data
protection or privacy law, as well as on professional and other associations,
these mechanisms are not necessarily effective. Individuals are seriously at a
disadvantage in controlling the effects of surveillance.
Transparency, accountability.
4.5.1.
Business, transport and government infrastructures all have mushrooming
surveillance capacities but individuals and groups find it difficult to discover
what happens to their personal information, who handles it, when and for what
purpose. Indeed, most of the time, ordinary citizens and consumers simply do
not have the time or the incentive to go in search of such details. Yet little by
little, their personal data are used to help shape their life chances, to guide their
choices. Given the power of large organisations with sophisticated surveillance
capacities, however, it seems only fair that ordinary people should have a say,
15
See e.g.: the discussion in: Bauman, Z. (2006) Liquid Fear, Cambridge UK: Polity Press.
Ericson, R. and Haggerty, K. (1997) Policing the Risk Society, Toronto: University of Toronto Press.
17
See the New York Times editorial, ‘The data-fleecing of America’ June 21, 2005.
16
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even if only at the level of principle. This may be sought, not only through
specialized agencies but also through advocacy groups and the mass media.
4.5.2.
Accountability should be assumed within organizations, especially when
high-powered surveillance occurs routinely, with potentially damaging
consequences. Although workplace surveillance offers some salutary examples
of poor practices, as we shall show, at least in some instances employers have
been obliged to curb the excesses of their monitoring by active labour union
intervention. And as examples in this area show, much can be achieved through
a transparent process of employers explaining what the monitoring entails and
negotiating acceptance for it from employees. When it comes to consumer
surveillance, however, no analogue exists, and yet the massive data-power of a
Tesco or a Walmart is almost unparalleled. The emergence of today’s
surveillance society demands that we shift from self-protection of privacy to the
accountability of data-handlers. Such work parallels the efforts of regulators to
enforce controls and to press for the minimising of surveillance.
5. Perspectives on the Surveillance Society 2: Processes
5.1.
5.2.
Social sorting.
5.1.1.
In the surveillance society, social sorting is endemic. In government and
commerce large personal information databases are analysed and categorized to
define target markets and risky populations.18 In the section on consumer
surveillance we shall see how a company like Amazon.com uses sophisticated
data mining techniques to profile customers, using both obvious and nonobvious relationships between data. This enables them to show who is most
likely to buy what but also which customers are likely to be credit risks. As far
as Amazon.com is concerned, you are their profile. Amazon.com benefits and no
doubt some customers feel they do too. It saves searching time to be
recommended other items. But there could also be negative consequences of
customers. Once classified, it is difficult to break out of the box. Such nonobvious relationships are also sought when sorting out groups who wish to
travel by airplane. Since 9/11 such sorting might possibly have contributed to
safety in the air (we shall never know) but it has certainly led to crude profiling
of groups, especially Muslims, that has produced inconvenience, hardship and
even torture.
5.1.2.
Social sorting increasingly defines surveillance society. It affords
different opportunities to different groups and often amounts to subtle and
sometimes unintended ways of ordering societies, making policy without
democratic debate. As the section on urban infrastructure shows, invisible,
taken-for-granted systems of congestion charging and intelligent public transit
both sort the city into groups that can travel relatively freely and others who
find travel difficult and at the same time can be used for crime control and
national security. No one has voted for such systems. They come about through
processes of joined-up government, utility and services outsourcing, pressure
from technology corporations and the ascendancy of actuarial practices.
Data flow.
18
See the classic study: Gandy, O. (1993) The Panoptic Sort: A Political Economy of Personal Information, Boulder CO:
Westview Press.
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5.3.
5.4.
5.2.1.
Data gathered by surveillance technologies flow around computer
networks. Many may consent to giving data in one setting, but what happens if
those data are then transferred elsewhere? In order to protect children from
abuse, or to reduce fraud in public services, frequent calls are made to draw on
more and more varied databases. Yet there is already all-too-little knowledge
either among the public or among data-sharing agencies about where exactly
those data travel. The idea that policy interventions be ‘intelligence-led’ has
taken hold and this, along with the networking and data-matching potentials of
today’s digital infrastructures, means that surveillance appears to operate by a
logic of its own.
5.2.2.
But that logic needs to be questioned, examined and checked, particularly
in regard to processes that involve data-flow from one setting to another. Such
data flows require description and analysis. While one major question is, how
secure are databases from unauthorized access or leakage?, a further and more
vital one is, to what extent should data be permitted to move from one sphere to
another? It is a basic issue of FIPs, but one that invites a new urgency as the
integration and harmonisation of ‘intelligence-led’ systems seems to be both
technologically and administratively desirable.
Function Creep
5.3.1.
The third process highlighted here is one that has already been mentioned
in this introduction. Personal data, collected and used for one purpose and to
fulfil one function, often migrate to other ones that extend and intensify
surveillance and invasions of privacy beyond what was originally understood
and considered socially, ethically and legally acceptable. In the case of Oyster
cards in the UK, data that begin life in the commercial sphere of public transit,
are increasingly required in police inquiries.19 Such data may also stay in the
same context but as their uses grow, they may acquire some dangerous
characteristics. Medical surveillance, as we shall see, is a case in point.
Diagnostic technologies that may have some utility in individual cases may
gradually be allowed to creep towards broader and broader contexts, weakening
their predictive qualities for positive diagnosis along the way. Those falsely
diagnosed may well be disadvantaged.
5.3.2.
Function creep usually happens quietly, unobstrusively, as a bit of
administrative convenience. But it profoundly challenges FIPs and, despite the
fact that it was identified as a problem several decades ago, is still a major issue.
Indeed, because new technologies permit increasing amounts of data
interchange and because organisational efficiency is frequently seen as a top
priority, the human consequences of function creep are all-too-often unknown,
ignored or downplayed.
Technologies.
5.4.1.
Surveillance today is often thought of only in technological terms.
Technologies are indeed crucially important, but two important things must also
be remembered: One, ‘human surveillance’ of a direct kind, unmediated by
technology, still occurs and is often yoked with more technological kinds. Two,
technological systems themselves are neither the cause nor the sum of what
surveillance is today. We cannot simply read surveillance consequences off the
19
See: ‘Oyster data use rises in crime clamp-down’ The Guardian, 13 March 2006,
http://politics.guardian.co.uk/foi/story/0,,1730771,00.html
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A Report on the Surveillance Society
capacities of each new system (especially if those capacities are described by
the vendor). But if technologies are indeed important for surveillance, how
should they be viewed?
5.4.2.
For the surveillance society properly to be understood, technologies
should be analysed and monitored in an ongoing way. We have to understand
how they work (what the software and hardware does), how they are used (this
is an interactive process, involving in-house personnel as well as technology
consultants and operatives), and how they influence the working of the
organisation. Moreover, we need to understand these things clearly enough to
influence policy and practice as our later discussion of impact assessments
suggests.
5.4.3.
Similar technologies are used today in different settings, encouraging the
development of joined-up surveillance. Recent developments, such as location
technologies, permit geographical tracking of persons and goods in real time
and current developments such as ambient intelligence, with embedded,
wearable and implanted devices take this even further. One important
implication is that those with ethical insights gleaned from the critical analysis
of surveillance society should be involved at every stage of implementation.
Systems become much less amenable to change after they have been
established.
5.4.4.
A third concern regard technologies is that many argue (mistakenly, as
we shall see) that anxieties about surveillance society may be allayed by
technical means. Certainly, some so-called privacy-enhancing technologies
serve well to curb the growth of technological surveillance (PETs) and their use
should be encouraged where appropriate. But these are at best only ever part of
the answer. We are correct to be wary of any offers to fix what are taken to be
technical problems with technical solutions. As we shall see, the real world of
surveillance society is far to complex for such superficial responses.
6. A Guide to the Report
6.1.
Following this Introduction (Part A), this Report has several further parts:
•
•
•
•
•
6.2.
10
Part B distils the findings of nine separate specially commissioned expert reports
into a wide-ranging survey of the Surveillance Society.
Part C illustrates the Surveillance Society, through a scenario, a week in the life
of an imaginary family in 2006; and secondly, through a series of glimpses of
how some of the encounters and experiences of this family might play out in ten
years time, in the year 2016.
Part D concerns what regulators (both government and ‘watchdogs’ like the
Information Commissioner) can do to curb the worst aspects of surveillance.
Part E provides suggestions of Further Reading.
All the expert reports are provided in full as appendices.
Accompanying the full report is a Public Discussion Document, designed to
provoke discussion and debate amongst the public at large.
A Report on the Surveillance Society
Part B:
A Survey of the
Surveillance Society
7. Introduction
7.1.
The Surveillance Studies Network commissioned a number of expert reports
which are appended. These reports covered: Health and Medicine; Consumption;
Work and Employment; Public Services; Citizenship; Crime and Justice;
Communications; Built Environment and Infrastructure; and, Borders. From these
reports, several key themes emerged which can be grouped into four areas: the
context of the surveillance society; surveillance technologies; the processes by which
surveillance operates and is implemented; and finally, how surveillance impacts on
individuals and groups in society. There is of course, a great deal of overlap between
these areas, and even more that could not be included.
8. The Context of the Surveillance Society
8.1.
8.2.
We first outline several underlying trends in western societies that lead to the
surveillance society. These are: risk and security; the role of the military; the
political economy of surveillance; and finally, the growing personal information
economy.
Risk and Security
8.2.1.
We live in a society obsessed by risk. Risk management techniques
dealing with external threats have become a key part of organisational activities,
which has intensified with the ‘war on terror.’ Internal risk assessment
procedures are also more and more common. Of course, post 9/11 risk
management is not entirely new and there is ample historical evidence of risk
profiling prior to 9/11.20
8.2.2.
However, a pre-emptive as opposed to a preventative approach to risk has
emerged.21 Current and emerging practices feature technologies and datamining to this end. Significantly, pre-emptive risk profiling shifts surveillance
practices toward the screening of the actions and transactions of the general
population.22 This screening can then be used to target interventions on people
or groups of people who are considered to be at risk or to pose risks for others.
Hence collection and analysis of information, including data on identifiable
individuals are vital.
20
Bigo, D. (2002) ‘Security and immigration: toward a critique of the governmentality of unease’, Alternatives (27): 63-92;
Andreas, P. and Snyder, T. (eds.) (2000) The Wall Around the West: State Borders and Immigration Controls in North America
and Europe, Lanham MD: Rowman and Littlefield.
21
Ewald, F. (2002) ‘The return of Descartes’ malicious demon: an outline of a philosophy of precaution’, in Baker, T. and
Simon, J. (eds.), Embracing Risk: The Changing Culture of Insurance and Responsibility, Chicago: University of Chicago Press.
22
Valverde, M. and Mopas, M. (2004) ‘Insecurity and the Dream of Targeted Governance’, in Larner, W. and Walters, W. (eds.)
Global Governmentality: Governing International Spaces, London: Routledge.
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8.2.3.
Surveillance is such a key component of living with risk that it might
even be more appropriate to call the surveillance society, the ‘risk-surveillance
society’. The response to risk is an emphasis on safety and security. The ‘risksurveillance society’ has allowed the emergence of a ‘safety state’ obsessed
with security and stability. ‘Better safe than sorry’ stands as a motto that
supports the considerable rise in social-care referrals for child abuse, and that
gives a green light to the precautionary surveillance of groups, categories and
individuals by the public services. This can confer personal and social benefits,
but at the same time the conception of safety and security has important
implications for liberty, privacy and other social values, as well as for
innovation and change, which are inherently risky.
8.2.4.
Several examples can illustrate this trend to risk assessment and preemption: the first is the rise of epidemiology and modelling within medical
surveillance23. Medical surveillance for public health purposes takes three main
forms, firstly monitoring and tracking individual disease cases. This occurs not
just for the patient’s own risk but also to identify sources of infection and/or
genetic risk, to identify and alert potentially infected individuals who have been
in contact with a person carrying an infectious disease (like AIDS or TB) or
affected relatives bearing the same genetic risk (e.g.: Huntingdon’s Chorea).
Secondly, recording occurrences of disease for statistical analysis (e.g.
identifying cancer clusters by analysing data in a cancer register). Third,
screening whole populations to identify individuals or groups at higher than
average risk for a disease (e.g. mass screenings for high blood pressure, or
routine mammographies for early identification of breast cancer). Genetics has
attracted intense debate and commentary and it is increasingly the case that
larger and larger databases of genetic information are being established both for
health, criminal justice and commercial reasons.
8.2.5.
Second one can see a wide variety of public policy areas.24 Risk-based
approaches, based on assessments of individuals, families and neighbourhoods,
are found in child protection and mental health, as well as in the criminal justice
field of public protection. Neighbourhood statistics’ responded to the need for
better data for intelligence-led, tailored and targeted interventions co-ordinated
across several agencies.25 Some comprehensive programmes, for example the
SureStart ‘early years’ programme for children, make intensive use of data
about individuals. It also supports efforts to combat social exclusion and to deal
with young offenders, and, especially, interventions in the education sector, new
departures such as the children’s database.
8.2.6.
In criminal justice, risk has become paramount and underpinning the
current focus of police and Home Office strategies is a consistent commitment
to utilise surveillance strategies and technologies in an effort not only to drive
down crime generally but, specifically to identify those at risk of criminal
23
On the rise to power of health economics, a field that extensively applies techniques and results from epidemiology to the
assessment of medical technologies, see e.g.: Ashmore, M., Mulkay, M.J. and Pinch, T.J. (1989) Health and Efficiency: A
Sociology of Health Economics, Buckingham: Open University Press.
24
6, P., Raab, C. and Bellamy, C. (2005) ‘Joined-up government and privacy in the United Kingdom: Managing tensions
between data protection and social policy, Part I’. Public Administration 83 (1): 111-133; Bellamy, C., 6, P., and Raab, C. (2005)
‘Joined-up government and privacy in the United Kingdom: Managing tensions between data protection and social policy, Part
II’. Public Administration 83 (2): 393-415.
25
Social Exclusion Unit, Cabinet Office (2000) Report of Policy Action Team 18 on Better Information. London: Social
Exclusion Unit, Cabinet Office; Department for Work and Pensions (2001) United Kingdom National Action Plan on Social
Exclusion 2001-03. London: Department for Work and Pensions.
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behaviour; to focus proactively on the ‘hardcore’ of persistent offenders that the
Government believes is most responsible for the crime problem26.
8.3.
8.2.7.
From the protection of land borders to the policing of cross-border
financial flows, from airport security to the screening of containers at sea ports,
risk assessment has become the defining feature of border surveillance.
Contemporary border surveillance involves the compilation, classification and
categorisation of data on, for example passenger manifests or financial
transactions, on an unprecedented scale. The USVISIT27 border control system
for a UK citizen crossing the US border mines some 30 databases, from
previous entry and exit data to social security records and information on
exchange students.
8.2.8.
Using detailed personal and medical information in risk assessment is
also of interest to both employers and the financial services industry. Although
it is not current practice, the potential combination of consumer and medical
information for credit referencing and insurance purposes raises major concerns
over data accuracy, data use and fraud. Increasing both the quantity and quality
of these data is a means for combating these issues, but this, in itself, has
unsavoury consequences. Depending on how this information is used, the
opportunities and life chances afforded to those who utilize and/or rely heavily
on social services could be curtailed because they would be identified as ‘high
risk’. This is also applies to entire populations in particular areas, through the
use of geodemographic data, which, in the context of consumer surveillance,
can identify and assign relative risk to entire streets, postal codes or wider areas.
The risk of investment is therefore passed from the organisation to its potential
customers or users (and their geographic location), though there is little
indication as to the means by which consumers and their neighbourhoods
increase or decrease as a cost intensive risk.
8.2.9.
Finally, in the workplace, personal medical information and biometrics
are now seen by employers both as ways in which the identity of employees can
be authenticated, and as a way of managing health and safety. For example,
following widespread adoption in the USA, drug and alcohol testing is growing
in the UK and is used especially where employees are in safety-critical jobs
(e.g.: driving vehicles).
The Militarization of Surveillance
8.3.1.
The drive to security is at least partly evidence of the continuing or
revived importance of the military in western societies. Military surveillance is
one of the few phenomena that can be said to be truly global in an age where
everything is supposedly being globalized. The Earth is increasingly surrounded
by a multitude of military surveillance satellites.
8.3.2.
In addition transnational communications systems are thoroughly
interpenetrated and infiltrated by military surveillance systems: even their
invention, design and protocols have military elements. One example is the
Global Positioning System (GPS), which was developed and is still ultimately
controlled by the US military, which can alter its functionality in certain places
and times when it suits military objectives. Another is the Internet. This
26
Home Office (2001a) Criminal Justice: The Way Ahead, Cm 5074, London: Home Office, 20-23; but for a critique of the
policy see: Garside, R. (2004) Crime, Persistent Offenders and the Justice Gap, London: Crime and Society Foundation.
27
United States Visitor and Immigrant Status Indicator Technology, in place at all land, air and sea ports of entry from 2004.
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transnational system of network connections and protocols was in no small part
based on the American military's ARPANET distributed communications
system, designed to survive destruction of particular parts of the system28.
Indeed the entire history of modern surveillance can be traced from early
development based in WW2 and Cold War Command Communications,
Control and Intelligence (C3I) systems, with the aim being to make the planet a
‘closed world’, a totally defensible and secure space29.
28
8.3.3.
The development of surveillance technologies and processes result from
a complex interaction between military and economic logics. Military
organisations and methods of control have always been central in the
development of the modern state. It was the control of military resources and
the resting of the legitimate right to use force with institutions of the state which
underlay the establishment of modern nation-states. This interaction manifests
itself not only in the government and technological components, but also in the
increasingly military way of talking about everyday safety: state and mass
media talk of ‘threat assessment’, the ‘war on drugs’, the ‘war on crime’, and
indeed ‘the war on terror’, of toughness in the law, of ‘zero tolerance’, and so
on. The concepts of defensibility and gating have become mainstream parts of
urban design. ‘Information warfare’ has come out of the dark shadows of
military covert operations and into the bright light of the business world, where
corporate espionage is rife and the computer penetration and security specialists
are redesignated as ‘knowledge warriors’.
8.3.4.
However there are many concrete examples if one examines the history
of technologies: many surveillance technology companies are intimately bound
up with the military yet sell increasingly to civilian users. There is evidence of a
shift of military supply and arms companies towards exploiting the civilian
market, and indeed of creating new markets for innovative products that are nolonger purely military of civilian30. Major arms manufacturers have shifted into
mainstream security and surveillance products: a good example is the progress
of TRW, a major partner of the US defence contractor, which became a leader
in civilian biometrics; in the UK, QinetiQ, the semi-privatised company
formerly known as the Defence Evaluation and Research Agency (DERA);
Sagem, in France, manufacturers of everything from mobile phones through
surveillance algorithms to unmanned aerial reconnaissance systems; and so on.
8.3.5.
In the 1990s, many argued that evidence of arms manufacturers shifting
into civilian production represented a positive trend, part of a post-Cold War
‘peace dividend’, the social benefits that would supposedly flow from the end of
the Soviet Union. But manufacturers who previously specialised in military
contracting have moved into civilian production without abandoning their
military roots, and have been quick to move back into military applications with
the ‘war on terror’ along with many newer security companies specializing in
particular surveillance technologies.
Rheingold, H. (1994) The Virtual Community, London: Secker and Warburg.
de Landa, M. (1991) War in the Age of Intelligent Machines, Cambridge MA: MIT Press; Edwards, P. (1997) Computers and
the Politics of Discourse in Cold War America, Cambridge MA: MIT Press.
30
Wright, S. (1998) An Appraisal of the Technologies of Political Control: Interim STOA Report (PE 166.499), Luxembourg:
European Parliament, Directorate General for Research, Directorate A, The STOA Programme; Doucet, I. and R. Lloyd (eds.)
(2001) Alternative Anti-Personnel Mines: The Next Generation, London / Berlin: Landmine Action / German Initiative to Ban
Landmines.
29
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8.4.
8.5.
The Political Economy of Surveillance
8.4.1.
These new companies along with traditional security providers and the
large military suppliers form part of what might broadly be called ‘the security
industry’. Other industrial sectors are also key to the growth of surveillance, in
particular, telecommunications and computing and banking and insurance.
8.4.2.
The security industry has grown massively in recent years. There are
multiple ways of measuring this growth. For example, US consultancy Security
Stock Watch’s 100 company index of the security industry includes
‘biodefense’, ‘environmental security’, ‘fraud prevention’, ‘military defense’,
telecommunications ‘network security’ and ‘physical security’ (barriers, video
surveillance etc.). According to the index, the growth of the industry as a whole
has consistently outperformed both the Dow Jones and the high-technology
NASDAQ indices31. At the end of the financial year 2005-6, the index had more
than doubled in 3 years, with an estimated market capitalisation for the 100
companies on the index of over $400 Billion US. Given the size and number of
other companies in this sector around the world, a conservative estimate would
be to double this figure.
Personal Information Economies
8.5.1.
Surveillance is not just conducted by states and organisations but also by
ordinary people. After the bombings in London in 2005, both television
companies and police were encouraging people to use their mobile phone
cameras to take pictures of suspicious characters. Growing numbers of people,
particularly children and young people, are also putting their lives up for
display, and in turn watching others’ lives, though online webcams32 and social
networking sites like MySpace and Bebo.
8.5.2. At the same time, those with greater access to knowledge resources are realising
that it pays to try look after the ‘data double’ that is created by the multiple
forms of surveillance that we undergo. This has become critical for life-chances,
especially as credit scoring and other forms of database-driven rankings of the
worthiness of individuals becomes the basis for the provision of a whole range
of services. Credit referencing agencies offer online access to their creditreferencing records for individuals, allowing people to challenge and correct
misleading data. This combination of voluntary corporate openness and the selfeducated individual cannot be relied upon as a form of regulation,
notwithstanding that a new generation of young people may be growing up as
citizens used to carrying out, being subject to, and dealing with surveillance.
9. Surveillance Technologies
9.1.
In our survey of surveillance technologies, we will first consider the vital
importance of ordinary non-technological surveillance, before making some general
but important points about the development and spread of surveillance technologies.
We will then concentrate on linked and overlapping advances in four technological
areas: telecommunications; audiovisual recording; digital computer technologies;
and tagging and tracking technologies. We will also consider interconnections
between different technologies and the trend for surveillance technology
31
SecurityStockWatch.com 100 Index, August 2006, http://www.securitystockwatch.com/
Koskela, H. (2004) ‘Webcams, TV Shows and Mobile phones: Empowering Exhibitionism’, Surveillance & Society, CCTV
Special (eds. Norris, McCahill and Wood), 2(2/3): 199-215, http://www.surveillance-and-society.org/cctv.htm
32
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simultaneously to vanish and spread everywhere. We will conclude by considering
the limits of technological development and the consequences of technological
dependence for organisations and government. There is, of course, much more: this
section illustrates some major developments but cannot be exhaustive.
9.2.
9.3.
33
Non-technological surveillance
9.2.1.
Whilst much attention focuses on advanced technologies of surveillance,
it should not be forgotten how many basic and human forms of surveillance
have been important throughout history, from the ancient act of ‘eavesdropping’
onwards, and are still important within contemporary society. These include:
simple observation, watching, listening and following, both from law
enforcement and private individuals; the use of human spies, undercover
operatives and informers by police and security services; a whole range of
medical, social security, financial and recruitment procedures based on face-toface interviews; and the keeping of records on paper files. Some of the most
intensive authoritarian surveillance regimes have been constructed around not
much more than these basic ingredients usually combined with a strong sense of
mistrust, and fear of infiltration, persecution or invasion. Examples can be
found in pre-Second World War Germany and Japan, and the former Eastern
Bloc countries, in particular the German Democratic Republic, which at one
time employed up to one sixth of the population as informants. 33
9.2.2.
Two other routine and human forms of surveillance make amongst the
biggest impact on citizens’ lives: the breathalyser testing of those suspected of
drink driving and the stopping and searching of people who might have been
involved in crime. Whilst these may involve technologies, both rely
fundamentally on human judgement (of police officers) in making the initial
selection of whom to stop. However the reliance on human judgement also
means that stop and search powers do not impact on all sections of the
community equally, with black people in Britain being six times more likely to
be stopped and searched than white people.34
9.2.3.
Simple forms of surveillance may be more effective at providing positive
protection and security than technologically-reliant methods. For example, in
the UK, the lack of clarity about the primary purpose of the proposed national
ID system is a key issue.35 It is far from clear that even national security will be
enhanced through this technology, and that it would perhaps be better served by
improving border security and conventional intelligence gathering, underscored
by the August 2006 alleged Atlantic flight terrorist plot involving more than 20
Britons.36 Although the US Administration claimed that the operation showed
the need for more advanced passenger data,37 the alleged plot was foiled by the
use of informers, undercover agents and tip-offs, and it is hard to see how
advanced ID systems would have provided anything more effective.
Technological Development
Garton Ash, T. (1997) The File: A Personal History, New York: Vintage Books.
Home Office (2006) ‘Operational Policing – Impact: about the Programme’, viiii. http://police.homeoffice.gov.uk/operationalpolicing/impact/impact-about-the-programme/
35
House of Commons Select Committee on Science and Technology (2006) Identity Card Technologies: Scientific Advice, Risk
and Evidence, http://www.parliament.uk/parliamentary_committees/science_and_technology_committee/sag.cfm
36
See: ‘Special report: terrorism threat to Britain’, The Guardian, 2006, http://www.guardian.co.uk/terrorism/0,,873826,00.html
37
‘Government Seeks to Expand Data Collection on Airline Passengers’ 22 August 2006, New York Times,
http://www.nytimes.com/2006/08/22/washington/22data.html?ex=1313899200&en=1985587a17e2fbaa&ei=5090&partner=rssus
erland&emc=rss
34
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9.4.
9.3.1.
It is indisputable that new technologies have helped to change the nature
of surveillance. Several general observations should be made about surveillance
‘technology’. First of all, there is no inherent ‘good’ or ‘evil’ within these
technological systems. Historically, IBM’s punch-card machines were as
essential to the efficient operation of the massive system of population
surveillance that enabled the Nazis to single out Jews and other ‘undesirables’
for imprisonment and extermination, as early computers were to cracking the
Enigma codes that sped the Allied defeat of the Nazis. Efficient national
databases can be used for the provision of targeted health care or for the
victimisation of political opponents.
9.3.2.
However it is not a simple matter of how surveillance technologies are
used. All technologies are developed within particular organisations which have
particular aims. A technology can sometimes be appropriated by users, for
example with text messaging on mobile telephones, which was never intended
as their major purpose. However the capabilities of technologies are determined
by the functionality built-in by their developers, for example the built-in
surveillance of television viewing preferences of many TV-on-demand systems
like TiVo). As we have seen, many technologies operate as part of global
networks, and the parameters of the networks are controlled by corporations,
state and often the military, for example, the Global Positioning System (GPS).
9.3.3.
Several particular technologies and their capabilities will be examined
below. However attention has to be paid not only to the capabilities and
practical use of any technology, but also to the development process, the control
over its operation as part of a network, and the way it connects to other
technologies.
Telecommunications
9.4.1.
Surveillance in telecommunications refers to the degree to which
individuals, organisations and corporate bodies are able to monitor, sort and
store information about the occurrence and content of telecommunications
exchange, both between technological devices, and between technological
devices and people. ‘Telecommunications’ includes the infrastructural
technological processes of communication, the systems and devices through
which telecommunications are achieved and also the exchange of ‘data’,
‘messages’ or ‘information’. Included in current definitions of
telecommunications are not only analogue but digital signal formats, and
telecommunications includes not only fixed line telephony with voice calls and
faxes, mobile telephony and the huge range of communicative functions
enabled by large scale digital and computing systems such as the Internet.
9.4.2.
Historically, the telecommunications infrastructure in the UK was
dominated by fixed line cable telephony run by the state General Post Office.
The single most likely source of surveillance was ‘wiretapping’, most often
associated with state law enforcement. Three key developments have seen a
radical transformation of this system: the expansion and convergence of
telecommunications technologies, the development of information storage and
processing capacity, and the diversification of telecommunications markets.
9.4.3.
Throughout the last two decades, technological development and change
has led to more diverse technologies employed for telecommunications. For
example, radio frequency devices now enable large-scale cellular or mobile
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telephony;38 optical fibre cabling enables high-speed digital fixed internet
connection, and a combination of both enable wireless computing. Mobile
telephony delivers not only voice calls but text, image and video messaging, as
well as location-based services.39 Internet technologies enable both
asynchronous communications such as email, bulletin boards and newsgroups,
as well as synchronous communications such as chatrooms, instant messaging
and webcam/video messaging.40 Furthermore, current changes in the
technologies of communication entail the convergence of technologies, and
their interoperability. Internet connection can now be made via a range of
devices, including handheld devices and mobile phones, and with the advent of
VoIP (voice over internet protocol), voice calls can now be made via the
desktop computer.
38
9.4.4.
With the development of each of these different technologies have come
the mechanisms for their use in surveillance. For any of these technologies to
‘work,’ they require the exchange of signals or data between technological
devices, and any exchange of data itself generates the mechanisms for the
capture, monitoring and storage of information about that exchange.
9.4.5.
In mobile telephony, for example, the location of a mobile device can be
ascertained simply by triangulating the signal of the device with its reception by
a number of different base stations as the signals are ‘handed over’ from one to
another – this information can be stored for later data-mining. As
telecommunications technologies become more interconnective, extensive and
intensive, the gathering, the potential for surveillance, and the storing and
mining of information derived through them grow exponentially. The routine
and automated collection of data on such a scale applies equally to the fixed line
telephone and internet communications (internet telecommunications data being
held on servers by Internet Service Providers). Furthermore, in February 2006,
an EU directive on Data Retention and UK legislative initiatives from the Home
Office have proposed to require not only mobile telecommunications
companies, but those offering both fixed line telephony and Internet services, to
retain data collected for up to two years in order that they be available for
scrutiny by law enforcement bodies.
9.4.6.
Transnational state surveillance of telecommunications, signals
intelligence (SIGINT) remains an area shrouded in secrecy, with the
technological capabilities the subject of a combination of educated guesswork,
extrapolation and rumour. States also routinely filter vast amounts of telephone,
telex, e-mail and fax traffic for reasons of ‘national interests’ (both security and
economic interests). The so-called ‘ECHELON’ system, the global surveillance
network operated by the American National Security Agency (NSA) maintains
a huge base at Menwith Hill in North Yorkshire, which routinely automatically
filters all telecommunications traffic passing thorough the UK for key words
and phrases and increasingly employs more sophisticated algorithms for
advanced speech and even meaning recognition41. International Licensed Cable
(ILC) communications are perhaps one of the easiest forms of communications
to intercept as for historical reasons all lines pass through nodal points located
Radio also enables RFID (radio frequency identification) for tracking goods, services and, potentially, people.
Location-based services in mobile telephony include global satellite information and positioning systems.
40
Internet functionalities such as web pages and web logs are excluded here as they are ostensibly ‘published’, and therefore
freely and publicly available as a matter of course.
41
Campbell, D. (1999) Development of Surveillance Technology and Risk of Abuse of Economic Information (An appraisal of
technologies of political control) Volume 2/5: Interception Capabilities 2000, Luxembourg: European Parliament, Directorate
General for Research, Directorate A, The STOA Programme; Wood, D (2001) The Hidden Geography of Transnational
Surveillance, Unpublished PhD Thesis, University of Newcastle, UK.
39
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in major cities. London is therefore a major centre for the interception of ILC
communications, carried out by the UK’s General Communications
Headquarters (GCHQ) through a massive computer known as Dictionary.
9.5.
Video Surveillance
9.5.1.
Photographic surveillance has been inexistence longer than most people
think. Almost as soon as it was invented, the camera was being used to record
the faces and other physical characteristics of criminals.42 Even television and
video surveillance using Closed-circuit Television (CCTV) was used
temporarily in public open streets in Britain as far back as the coronation of
Elizabeth II in 1953 and permanently in some areas on London from the late
1960s43.
9.5.2.
Following the most recent surge of CCTV installation from the early
1990s, prompted by attempts to reverse the decline of city centre shopping
districts as well as fear of terrorism, crime, there may now be as many as 4.2
million CCTV cameras in Britain: one for every fourteen people,44 and a person
can be captured on over three hundred cameras each day.45
9.5.3.
During the 1990s the Home Office spent 78% of it crime prevention
budget on installing CCTV46 and an estimated £500M of public money has been
invested in the CCTV infrastructure over the last decade.47 However a Home
Office study concluded that ‘the CCTV schemes that have been assessed had
little overall effect on crime levels’.48
9.5.4.
Digitisation has allowed increasingly automated use of CCTV systems.
So far this has occurred largely on the roads. Vehicle number plates are being
used to identify the registered owner. Camera based enforcement of speed
restrictions increased from just over 300,000 in 1996 to over 2 million in 2004
and raising an estimated £113 million in fines per annum.49 This increase in
state surveillance has received a consistently negative press,50 despite the fact
that speed cameras, unlike open street CCTV have a significant impact in
reducing death and injuries cause by traffic accidents.51
9.5.5.
The intensification of surveillance of the motorist is set to expand
rapidly. In March 2005, the Association of Chief Police Officers demanded a
national network of Automatic Number Plate Recognition (ANPR) ‘utilising
police, local authority, Highways Agency, other partner and commercial sector
42
Sekula, A. (1986) The Body and the Archive, October 39: 3-64; Finn, J. (2004) Photographing fingerprints: data collection and
state surveillance, Surveillance & Society 3(1): 21-44. http://www.surveillance-and-society.org/Articles3(1)/fingerprints.pdf
43
Williams, C.A. (2003) ‘Police surveillance and the emergence of CCTV in the 1960s’, Crime Prevention and Community
Safety 5(3): 27-38.
44
McCahill, M. and Norris, C. (2003), ‘Estimating the extent, sophistication and legality of CCTV in London’, in M. Gill (ed.)
CCTV, Perpetuity Press.
45
Norris, C and Armstrong, G. (1999), The Maximum Surveillance Society: The Rise of Closed Circuit Television, Oxford:
Berg.:42
46
ibid.: 54
47
Norris, C. (2006) ‘Closed Circuit Television: a review of its development and its implications for privacy’, paper prepared for
the Department of Homeland Security Data Privacy and Integrity Advisory Committee quarterly meeting, 7 June, San Francisco
CA.
48
Gill, M. and Spriggs, A. (2005). Assessing the impact of CCTV. London, Home Office Research, Development and Statistics
Directorate, 43, 60-61.
49
Wilkins, G. and Additcott, C. (1998) Motoring Offences England and Wales 1996, Home Office Statistical Bulletin, London:
Home Office; Ransford, F., Perry, D. Murray, L. (2005) Motoring Offences and Breath Test Statistics: England and Wales 2003,
Home Office Statistical Bulletin, London: Home Office.
50
McCahill and Norris, 2003 op cit. n.44.
51
PA Consulting (2004) Denying Criminals the Use of the Road, http://police.homeoffice.gov.uk/news-andpublications/publication/operational-policing/ANPR_10,000_Arrests.pdf?view=Binary
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A Report on the Surveillance Society
cameras’52 including the integration of the existing town centres and high street
cameras53, with a National ANPR Data Centre, with an operational capacity to
process 35 million ANPR reads every day increasing to 50 million by 2008,
stored for two years.
9.6.
52
The Database
9.6.1.
It is this storage capability that has formed perhaps the biggest change
already brought about by the information technology revolution: the ubiquity of
the computer database. Multiple data can now be gathered, tabulated and crossreferenced far faster and more accurately than with the paper files that were
once the characteristic feature of modern bureaucracy.
9.6.2.
The collection, use and communication of large stores of personal data
held on citizens are now central to the functioning of private business and the
public services. Different data sets may be matched against each other to
identify persons and suspicious patterns of activity. The data may also be
‘mined’ – analysed in great depth by sophisticated technologies to reveal
patterns that may require further investigation.
9.6.3.
The surveillance that is involved in the public service can be usefully
thought of in terms of ‘dataveillance’, ‘the systematic use of personal data
systems in the investigation or monitoring of the actions or communications of
one or more persons’.54 That term, a variation of ‘surveillance’, emphasises the
importance of databases, rather than visual or auditory means of watching over
people, in the practices of states and companies. Databases combined with other
surveillance systems also allow algorithmic surveillance, the use of software to
work on captured images or data and compare them to those in the database.
This has been essential in the development of biometrics (see below).
9.6.4.
In the private sector, the decreasing costs of databases and the increasing
ability to extract actionable knowledge and value from data has resulted in a
personal information economy in which many corporations seek to gather as
much consumer data as possible.55 Consumer data can be divided into four
categories56: Geographic data describes features of place, demarcated by
telephone area codes, postal codes, internet URLs and domain names. This is
almost always connected to demographic data about individuals as
‘geodemographic’ data. Psychographic data concerns more social aspects of
consumers in terms of class, values, lifestyle, life stages, and personality.
Finally there is data on consumer behaviour.
9.6.5.
Data are created and collected in many ways. Every transaction provides
a ‘data trail’, linkable to an individual or type of person.57 These transactions
include the use of credit cards, bank cards, mobile phones, the Internet, a
purchase, search or phone call. Additional data are generated through loyalty
card programmes, customer surveys, focus groups, promotional contests,
ibid.: 6
ibid.:18
54
Clarke, R. (1991 [1987]) ‘Information technology and dataveillance’,
http://www.anu.edu.au/people/Roger.Clarke/DV/CACM88.html
55
See: Dyson, E., Gilder, G., Keyworth, G. and Toffler, A. (1996) ‘Cyberspace and the American dream,’ The Information
Society 12: 295-308; 6, P. (2005) ‘The personal information economy: trends and prospects for consumers,’ in Lace, S. (ed.)
(2005) op cit. n.6.
56
These categories are drawn from: Michman, R.D. (1991) Lifestyle Market Segmentation. New York: Praeger; see also: Elmer,
G. (2004) Profiling Machines. Cambridge, MA: MIT Press.
57
Cash transactions for example, though usually unable to be linked to a consumer directly are often analysed against similar
past transactions and types of consumers who have made these purchases.
53
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A Report on the Surveillance Society
product information requests, call centre contacts, web site cookies, consumer
feedback forums and credit transactions. This internal and frequently
proprietary data is often ‘overlaid’ with external data from state agencies (e.g.:
National Statistics), non-profit organizations or specialist data collection
companies. This rapidly growing business sector gathers data by combining
publicly available data (for example, the census and the phone book), with data
produced by promotional contests, warranty information (complete with
extensive surveys), door to door, telephone, and shopping centre surveys, media
and informational subscriptions and track web page traffic. These are most
readily connected to postal codes, and given streets are ‘profiled’ with terms
like ‘prudent pensioners’, ‘fledgling nurseries’ to ‘rustbelt resilience.’58 Profiles
provide the means for companies to target their marketing to a narrower band of
consumers, for example, a bank that has an agreement with a travel company
may be able to market family holiday destinations to those it has categorized as
families, with a different set of travel options to those who are retired.59 Third
party vendors may also provide lists of consumers who enjoy gardening
(perhaps based on a magazine subscription) or of purported frequent travellers
(perhaps drawn from survey research). The connections made between these
sets of data are a result of ‘data-mining’ techniques designed to extract
‘clusters’ of data indicating patterns and relationships within a particular set of
data.
9.6.6.
Simple matching techniques and the use of geodemographic profiling is
now augmented by more sophisticated ‘heuristic’ (learning) processes of data
mining, often referred to as Knowledge Discovery in Databases (KDD). This
further assists in discovering previously unknown and non-obvious relationships
within sets of information.60 The ‘product’ of these systems is perhaps most
visible as the basis for web personalisation systems, such as is employed by
Amazon.com, which use multiple sources of data to predict the likely
preferences of current shoppers.61 These techniques enable both descriptions of
patterns of behaviour and predictions for behaviour within a reasonable range of
accuracy. They assume that a given customer will replicate the patterns of
others before him whether or not these patterns are obvious or not. These
models of consumer behaviour serve to demonstrate the propensity of
consumers to buy certain products, respond to certain marketing campaigns, be
at risk for attrition, become a credit risk, and more.
9.6.7.
Database development and use now forms a key part of change in public
services. For example, there has been massive investment in the use of personal
information in health care. The National Health Service (NHS)’s IT
programme, Connecting for Health, is the largest in Europe, and commitments
have been made far into the future.62 For the past decade, there have been great
58
The former category is derived from the ACORN classification system by a company known as CACI and the latter two
categories are MOSAIC classifications by Experian. More information about these products are available at
http://www.caci.co.uk/acorn/ and http://www.business-strategies.co.uk/Content.asp?ArticleID=629 See also: Burrows, R. and
Gane, N. (forthcoming) ‘Geodemographics, software and class.’ Sociology.
59
Again, there are privacy limitations to the use of this information and the sharing between companies, yet certain clauses do
allow for this scenario to occur, particularly if the marketing material comes directly from the primary data owner, in this case,
the bank.
60
For more on distinctions between KDD and data-mining, see Tavani, H.T. (1999) ‘KDD, data mining, and the challenge for
normative privacy.’ Ethics and Information Technology 1: 265-273. Many sources discuss data mining as the overall process of
working with data for the purposes described here. See Rygielski, C., Wang, J-C, and Yen, D.C. (2002) ‘Data mining techniques
for Customer Relationship Management.’ Technology in Society 24: 483-502, Danna and Gandy (2002) op cit. n.6. For the
purposes of clarity, the term KDD is used here to define the overall technical process that indicates particular affinities (obvious
or not) within sets of data and data mining as the practice of accumulating critical data for further data analysis.
61
Fink, J., and Kosba, A. (2000) ‘A review and analysis of commercial user modeling servers for personalization on the World
Wide Web.’ User Modeling and User-Adapted Interaction 10: 209-249.
62
The Wanless Report (2002) Securing Our Future Health: Taking a Long-Term View: Final Report, London: H.M.Treasury.
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A Report on the Surveillance Society
efforts to co-ordinate, and to develop Electronic Patient Records (EPR), moving
ultimately towards a comprehensive national digital database of all personal
health records. The NHS ‘spine’ of data on each patient63 is at the centre of the
NHS Care Records Service, containing a limited amount of essential
information that can be combined with a larger amount of locally-held care
information. In addition, the programme involves national databases with
patient records supplied by local NHS bodies, including data on notifiable
diseases and information held for clinical audit. Pathology and other test records
can be filed electronically. Plans and partial developments also include booking
appointments, prescriptions, electronic transfer of patients’ records between GP
practices, and other functions. EPRs are held and transferred securely, for they
are encrypted with a public-key system, and are subject to rules that allow
personnel in each NHS function to look at only those data that are relevant to
that function. There have been some local pilot schemes in which patients
manage their own records through the use of smart cards.
63
9.6.8.
Databases are also crucial in law enforcement. Some two million people
a year are arrested by the police in England and Wales. The Criminal Justice
Act 2003 empowered the police to take fingerprint impressions and DNA
samples from all arrestees with the records remaining on police databases and
accessible via the police national computer regardless of guilt or innocence. The
database of fingerprints now contains nearly 6 million sets of prints and
automated matching is almost instantaneous.64 The National DNA Database was
set up in 1995, has expanded so that ‘virtually the entire active criminal
population would be recorded on the database’ by 2005.65 In December 2005
the database held profiles on 3.45 million individuals, roughly 5.2% of the total
population. Nearly 40% of black males are now profiled on the database
compared with 9% of white and 13% of Asian males.66 The Drugs Act of 2005,
which became operational in March 2006, gave the police the power to drug test
all people arrested for certain trigger offences, including theft, robbery, burglary
and begging, again regardless of guilt.
9.6.9.
The heart of the police IT infrastructure is the Police National Computer
(PNC). The PNC holds a range of databases and provides the ability to read
external databases such as the register of drivers held by the DVLC and is now
linked to more than 30,000 terminals across the country. The last decade has
seen the PNC moving from being an electronic filing cabinet to a fully-fledged
intelligence tool in its own right with the ability to search across any of the
fields.67 It is now augmented by ANPR, the National Automated Fingerprint
Identification System (NAFIS) and the Violent Offender and Sex Offender
Register (ViSOR), which provides police and probation with a shared national
database that contains an expanded set of information on offenders, including
personal details, descriptive details, behavioural traits, details of risk
assessment, intelligence reports, an activity log and a photographic library68.
The most recent initiatives has been a project to develop a Facial Images
National Database (FIND), to be fully operational by 2009, cross-referenced to
NHS Connecting for Health (2006) ‘Spine’, http://www.connectingforhealth.nhs.uk/delivery/programmes/spine .
PITO (Police Information Technology Organisation) (2005) Annual Report 2004 – 2005, HC 261, London Stationery Office.
65
FSPU (Forensic Science and Pathology Unit) (2005) DNA Expansion Programme 2000-2005: Reporting Achievement. London
Home Office:3, Postnote 200.
66
Randerson, J., ‘DNA of 37% of black men held by police’, The Guardian, 5 January 2006,
http://www.guardian.co.uk/frontpage/story/0,,1678168,00.html .
67
ibid.
68
PITO (2004) ‘Memorandum by the Police Information Technology Organisation to the Bichard Inquiry’,
http://www.bichardinquiry.org.uk.edgesuite.net/10663/full_evidence/0018/00180001.pdf .
64
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A Report on the Surveillance Society
the PNC.69 These databases are also used for Criminal Records Checks, which
are now mandatory for persons seeking employment in jobs involved with the
care of the young or vulnerable. Since 2002 it has produced 8.2 million
disclosures of which around 400,000 contained convictions or police
intelligence information.70 These will be cemented by the Criminal Justice
Exchange (CJX) system, which will enable information to be shared across all
the agencies of the criminal justice system71, not only at police stations but, with
the development of Airwave, the new police digital communications system, the
patrol officer on the street via a hand held computer.72 Ultimately, the Cross
Regional Information Sharing Project (CRISP), will create a single national
police database will integrate all databases on the PNC with those held locally.73
9.6.10.
With the development of the National ANPR Strategy the database is set
to become an even more central feature of routine policing. For instance, under
the ANPR strategy there is a plan to link garage forecourt cameras to the
system, which will greatly increase the coverage of the system since, at some
point, all vehicles must fill up with petrol. In exchange, the petrol stations will
’benefit from our intelligence telling them which vehicles to take payment from
before they serve them’74
9.6.11.
In border surveillance practices concerns there has been significant dataled restructuring of the role of the border guard. The proliferation of ‘smart
borders’ and ‘electronic borders’ have at the heart of their vision, the
repositioning of border guards as ‘the last line of defence and not the first’.75
The everyday experience of surveillance at the border, then, is preceded by a
dataveillant system that makes judgements about degrees of risk before the
physical border checkpoint.
9.6.12.
This is not only the case in the mobility of people, but also in the
mobilities of money and goods.76 The UN’s Financial Action Task Force
(FATF) for intercepting terrorist finances, for example, envisages stopping the
money before it reaches the border. As analyses have shown, however, the war
on terrorist finance has resulted in greater surveillance of cross-border money
transfer agencies such as Western Union and, by implication, the money
transferred by migrants as remittances to their country of origin. An important
issue here, then, is how data are used to pre-judge the risk of a particular border
crossing and whose lives are most significantly affected by such judgements.
9.7.
Biometrics
9.7.1.
All new ID systems also use some kind of biometric: fingerprints, irisscans, facial topography and hand-scans are all used on different passports and
ID card systems. The allure of biometrics is the appearance of an ‘anchor’ for
identity in the human body, to which data and information can be fixed. The
biometric identifier – iris scan, digital fingerprint, facial scan, voice biometric
69
PITO (2006) Facial Images National Database (FIND), http://www.pito.org.uk/products/FIND.php
‘Criminal records mix-up uncovered’, BBC News, 21 May 2006, http://news.bbc.co.uk/1/hi/uk/5001624.stm
71
CJIT (Criminal Justice Information Technology) (2005) CJS Exchange, http://www.cjit.gov.uk/glossary/#c
72
ACPO (Association of Chief Police Officers) (2002) Infinet: A National Strategy for Mobile Information, London: ACPO.
73
Home Office (2006) op cit. n.34.
74
ACPO (Association of Chief Police Officers) (2005) ANPR Strategy for the Police Service 2005-8: Denying Criminals the Use
of the Road, London: ACPO. http://www.acpo.police.uk/asp/policies/Data/anpr_strat_2005-08_march05_12x04x05.doc
75
Accenture Digital Forum (2004) ‘US Homeland Security to Develop and Implement program at air, land and sea ports of
entry’ http://www.digitalforum.accenture.com
76
deGoede, M. (2003) ‘Hawala discourses and the war on terrorist finance’, Environment and Planning D: Society and Space
21(5): 513-532. Chalfin, B. (2004) ‘Border scans: sovereignty, surveillance and the customs service in Ghana’, Identities:
Global Studies in Culture and Power 11: 397-416.
70
23
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or hand scan – becomes the access gateway to the data held. It is this
convergence of data-mining and information integration with biometric
identifiers. The idea is that accuracy will be increased and fraud reduced. PINs
and passwords may be forgotten or lost, but the body provides a constant, direct
link between record and person.
9.8.
77
9.7.2.
Whilst biometrics had been growing rapidly, the ‘War on Terror’ has
produced a massive surge in both research funding and implementation. After
9/11 in the USA, biometric techniques already in commercial use or on the
threshold of applicability were fast tracked and heralded as the key to winning
this new kind of war.77 The US Patriot Act, in a framework that has implications
far beyond US soil, established a set of practices for biometric applications that
afforded their almost unlimited use in the investigation and identification of
terrorist activity.
9.7.3.
In British cities, following early experiments of face recognition software
in Newham, Birmingham, Tameside, Manchester, and other locations, as well
as in the United States, however, a shift towards digital CCTV, which uses
computer algorithms to search automatically for stipulated people or
behaviours, is gaining momentum. Face recognition, and other biometric CCTV
systems, still face major technical obstacles in operating outdoors on city
streets. However, considerable research and development investment is rapidly
addressing these.78
Locating, Tracking and Tagging
9.8.1.
Surveillance practices are increasingly referenced, organised and located
through Geographical Information Systems (GISs)79. Many actually track the
geographical movements of people, vehicles or commodities using RFID chips,
Global Positioning Systems (GPS), smart ID cards, transponders or the radio
signals given off by mobile phones or portable computers.
9.8.2.
According to a forensic engineer cited in a BBC report, mobile traffic
data can link suspects to crimes: ‘if a person makes a mobile call, potentially
while involved in commission of a criminal act, it is possible to determine from
[the traffic data] where the radio footprint would have been made.’80 There is
frequently no differentiation between the mobile as a device and the mobile
user. According to the Home Office, ‘communications data is an important
investigative tool: allowing investigators for example to establish links between
suspected conspirators (itemised bill) or to ascertain the whereabouts of a given
person at a given time, thereby confirming or disproving an alibi (cell site
analysis)’.81
9.8.3.
Both GPS and RFID are increasingly being seen as solutions in law
enforcement and personnel management. Electronic monitoring has also been
introduced as a condition of being granted bail and in 2004/5 some 631 adults
and 5751 juveniles, some as young as twelve years old, were ‘tagged’ allowing
Amoore, L. (2006) ‘Biometric borders: governing mobilities in the war on terror’, Political Geography 25: 2: 336-351; Gates,
K. (2005) ‘Biometrics and post-9/11 technostalgia’, Social Text 23(2): 35-53. Irma Van der Ploeg, ‘Biometrics and the body as
information’, in Lyon, D. (ed.) (2003) op cit. n.6.
78
See Norris, C. (2003) ‘From personal to digital: CCTV, the panopticon, and the technological mediation of suspicion and
social control,’ in Lyon, D. (ed.) (2003) op cit. n.6; Norris, C. and Armstrong, G. 1999: The Maximum Surveillance Society : The
Rise of CCTV, Oxford: Berg.
79
Institute for the Future (2004) Infrastructure for the New Geography, Menlo Park, CA: IFTF.
80
‘Phone firms ‘flooded’ by crime checks’. BBC News, 20 December 2002, http://news.bbc.co.uk/1/low/uk/2592707.stm
81
See Home Office (2006) Surveillance: Access to Data, http://security.homeoffice.gov.uk/surveillance/access-to-data/
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them to await trial at home rather than be remanded into custody.82 Offenders
released from prison are also increasingly subjected to electronic monitoring
either as a condition of early release from prison under the Home Detention
Curfew Scheme83 or as a condition of being released on Parole.84
9.8.4.
RFID underpins new ‘smart’ means of continually tracking goods and
people wirelessly as they move across geographic environments. These chips
emit a limited range radio signal that can be picked up by receivers usually
within a few centimetres. One other major distinction here is active versus
passive RFID. Increasingly the possibilities of the use of active RFID are on the
agenda. Indeed, recent high profile bids for government border security
contracts have included demonstrations of the potential of wireless tracking
devices.
9.8.5.
Until recently their use has been restricted to large shipping containers,
consumer goods and various kinds of ‘smart cards’. In the US, despite serious
challenges to proposals for RFID in passports and visas, RFID-enabled border
smart cards are being trialled at the US-Mexico border. On the supply side, the
RFID industry is flagging the potential for the technology to allow the tracking
or tracing of migrant workers who cross the border for a time-limited period.
9.8.6.
Recently a notable change has occurred subtly and largely unnoticed: the
implantation of living beings. While race-horses were the first, mass
microchipping of animals has began with chips containing information about
immunisation records and ownership gradually replaced quarantine
requirements for household pets in the EU from 28th February 2000 through the
PETS scheme, which has since been extended beyond Europe85.
9.8.7.
The first human use of RFID chips has been in elderly people suffering
from degenerative diseases in the United States, and around 70 people with
degenerative brain conditions have now been implanted to enable carers to
locate them easily86. Researchers and technological enthusiasts have also been
implanting themselves with chips for several years87, and at least one chain of
Spanish nightclubs has offered patrons the chance to have cash and access
privileges held on implanted chips88. However a step-change occurred in
February 2006 when a security company on Ohio, USA, implanted two of its
workers with RFID chips to allow them to access company property89. Although
such an invasive procedure was carried out voluntarily, it raises enormous
questions of the integrity of the body and privacy in relation to employers. It is
also not entirely surprising that the call for everyone to be implanted is now
being seriously debated on some technology websites.
82
NPS (National Probation Service) (2006) Electronic Monitoring 6.
http://www.probation.homeoffice.gov.uk/output/Page137.asp#Current%20Programmes .
83
The HDC scheme allows for those sentenced to between 3 months but under four years imprisonment to be released between 2
weeks and four and a half months early on a curfew enforced by electronic monitoring. In 2004/5 19096 people were release
early under the scheme (ibid.: 6).
84
NPS op cit.
85
For details, see: DEFRA (Department of Environment, Food and Rural Affairs) (2006) Pet Travel Scheme,
http://www.defra.gov.uk/animalh/quarantine/pets/index.htm .
86
The company involved is Verichip Corporation. http://www.verichipcorp.com/ .
87
Amal Graafstra is one such high profile enthusiast and advocate of self-chipping. Explanations, pictures and videos can be
downloaded from his website http://amal.net/rfid.html .
88
Graham-Rowe, D. (2004) ‘Clubbers chose chip implants to jump queues’, New Scientist, 21 May,
http://www.newscientist.com/article.ns?id=dn5022 .
89
Waters, R. (2006) ‘US group implants electronic tags in workers’, Financial Times, 12 February.
http://www.ft.com/cms/s/ec414700-9bf4-11da-8baa-0000779e2340.html .
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9.8.8.
9.9.
Commercially, both RFID tags and GPS are seen by companies as a
means to produce customised marketing in real time to particular consumers,
offering discounts on mobile devices to retail outlets in a given location, for
instance. However both RFID and GPS use have been hindered by the costs of
the technology compared to the costs of the products to which they are attached.
Applications for these have largely been a part of personnel and inventory
management, both forms of workplace surveillance, yet as these technologies
continue to become less expensive it remains likely that these location tracking
devices, especially RFID chips, will be used to monitor both consumer products
and consumers themselves.90 Continued developments in the application of real
time geographic data to consumer profiles will provide yet another layer of data
to assist corporations in targeting marketing campaigns to particular consumers.
These, therefore, are technologies whose functions are highly likely to ‘creep.’
Technological Synergy and Function Creep
9.9.1.
Whilst the capabilities of individual technologies and systems are
important, there is also increasing technological synergy, or convergence of
surveillance technologies. This is a long-term trend within computer systems
and is also motivated by desires to create economies of scale. More and more
systems are designed with interoperability in mind. This also means that new
products can emerge out of older technologies, which in themselves had been
understood and managed by regulators, coming together to create an entirely
unforeseen and unregulated function.
9.9.2.
This interoperability and technological synergy can be added to the more
simple but common ‘function creep’ as multiple new uses are found for
technologies and as information gathered for one purpose or in one domain
leaks through into others. For example, not only are the same data-mining
techniques developed for profiling consumers being used by security and
intelligence services to profile potential terrorists, often the very data from
which these profiles are created are the same. There is also some evidence now
that the dominance of a particular firm in commercial applications of a
technology (for example fingerprint secure entry systems for workplace
security) is a key factor in their success in security procurement processes. In
the workplace, employee monitoring technologies can sometimes yield more
information than intended, and management has the temptation to extend
monitoring practice without consulting employees. This can be particularly
important if the information is being used in decisions about pay or promotion.
9.9.3.
Pressure is on to find IDs that work for several purposes – border
crossing, fraud control, access to government information and perhaps
commercial (video rental) and semi-commercial ones (libraries) as well – which
is shaping the field in fresh ways. The key problem is that once established,
systems can easily acquire an apparent life of their own which is much easier to
initiate than to halt or redirect. When agendas such as the ‘war on terror,’
curbing the migration of undesirable groups and even the quest for solutions for
credit card fraud are shaping the development of ID systems, the ‘impersonal’
ethos of a classic bureaucracy do seem somewhat undermined. The chief
difficulty lies in the powers granted to the state (and corporate and technical
bodies) controlling the means of identification.
90
See: Lyon, D., Marmura, S. and Peroff, P. (2005) Location Technologies: Mobility, Surveillance and Privacy, Queens
University, Kingston, Ontario: The Surveillance Project. http://www.queensu.ca/sociology/Surveillance/files/loctech.pdf .
26
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9.9.4.
Other examples include the London congestion toll system, which has
been enrolled as part of an anti-terrorist initiative proactively searching for
suspect and stolen cars. The story of ANPR in London also shows that function
creep works in several ways: the technology was originally developed for
military purposes, installed to help identify IRA bombers, and now has a role in
traffic management, local government revenue raising and security against a
new generation of terrorists.
9.9.5.
In medical surveillance, diagnostic surveillance technologies can move
from individual diagnostics towards ever broader surveillance, applied to larger
and larger proportions of the population. In particular they have a tendency to
creep into forensic purposes. A number of technologies used for medical
diagnosis have also been applied to forensics – DNA analysis of tissue
fragments; analyses of bodily performances such as posture, gait, or facial
expression; analyses of body parts and images or imprints (e.g. fingerprints,
height, weight, bodily proportions). Many of these are now being proposed for
surveillance purposes in the form of extensive databases against which
identities can be checked.
9.9.6.
With traffic or transmission data, organisations are entirely free to gather,
store and manipulate what data they will (and are now required by law to retain
it for longer periods of time). This clearly leaves the sector open to function
creep in the surveillance of telecommunications data, and where the state and
corporate sectors are each extensively involved, data subjects have little power
with respect to the ways their data are collected, stored, shared, bought or sold.
9.10.
Towards Pervasive Surveillance
9.10.1.
Technologies are at their most important when they become ubiquitous,
taken for granted, and largely invisible. As Mark Weiner argued in 1991, ‘the
most profound technologies are those that disappear. They weave themselves
into the fabric of everyday life until they are indistinguishable from it’.91
Digitised, networked surveillance technology is tending towards pervasiveness.
Pervasive or ubiquitous computing (Ubicomp), also known in Europe as
‘ambient intelligence’ (AmI), creates the conditions for pervasive or ubiquitous
surveillance.92 One of the fundamental building blocks of Ubicomp is the
concept of the Uniform Resource Locator (URL), known to most people
through the use of Internet addresses. However a URL was always intended to
be much more than this, it is supposed to provide a place in the network for
potentially all objects and people.
9.10.2.
Such continuous software-sorting of people and their life chances in
cities is organised through myriad electronic and physical ‘passage points’ or
‘choke points’, negotiated through a widening number of code words, pass
words, PIN numbers, user names, access controls, electronic cards or biometric
scans. Some are highly visible and negotiated willingly (a PIN credit card
purchase or an airport passport control). Others are more covert (the sorting of
internet or call centre traffic). On still other occasions, the passage point is clear
(a CCTV camera on a street or a speed camera on a motorway), but it is
impossible to know in practice if one’s face or car number plate has actually
been scanned.
91
Weiner, M. (1991) ‘The computer for the 21st century’, Scientific American, 265 (September): 94-104.
Kang, J. and Cuff, D. (2005), Pervasive Computing: Embedded in the Public Sphere, available from [email protected] Cuff, D.
(2002) Immanent domain: Pervasive computing and the public realm, Journal of Architectural Education, 57: 43-49.
92
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9.10.3.
Electronic services and realms are relatively easy to control compared to
physical urban streets, but increasingly most passage points now involve both
electronic and physical parts working closely together. The combination of
CCTV, biometrics, databases and tracking technologies can be seen as part of a
much broader exploration, often funded with support from the US/UK ‘war on
terror’, of the use of interconnected ‘smart’ systems to track movements and
behaviours of millions of people in both time and space. In industry parlance,
this is called multiscale spatiotemporal tracking.93
9.11.
The Limits of Technology
9.11.1.
Of course, the promise of technologies is almost never delivered quite as
anticipated. The biometric technologies for the USVISIT programme, for
example, were downgraded from planned iris scans to digital fingerprints for
logistical reasons. Similarly, the biometrics elements of the UK’s e-Borders
programme have been subject to problems of implementation. As a result, the
biometrics elements of routine border surveillance practices are relatively
underdeveloped.
9.11.2.
Some of these problems concern reliability94 with outstanding problems
of ‘failure to enrol (FTE)’ (the biometric is unrecognisable) and ‘false nonmatch’ (subsequent reading does not match the properly enrolled individual
biometric). Despite this, major implementation decisions are often made before
full trials have occurred. For example in the proposed UK ID system, it has
been estimated that as many as one in six persons may not be able to use their
ID cards because of the FTE problems.95
9.11.3.
Whether a medical diagnostic, forensic or any other surveillance
technique involving the probabilistic and/or predictive identification of targets
yields false non-matches depends on two important elements: the sensitivity and
specificity of the technology used. Sensitivity is the technology’s ability to
identify relevant cases correctly. Specificity (also called selectivity) is the
technology’s ability to exclude irrelevant cases correctly. Individual
characteristics, organizational settings, test criteria, and domain-specific
knowledge will yield different sensitivity and specificity outcomes. Sensitivity
and specificity values also depend on the criteria set for the test for example
whether ultrasound scans for Down’s syndrome in foetuses is carried out by a
skilled or semi-skilled operator) and they tend to trade off against each other.
Widening sensitivity means identifying a higher number of potential targets, but
within that (necessarily) larger identified population there will be a higher
number of borderline and falsely identified targets, so selectivity decreases.
Hence no test is perfect, and the setting of sensitivity/specificity thresholds is as
much a product of political, social and organizational factors as it is the
technology. As such, it is wise to assume that a certain percentage of an
identified population will be false negatives or positives. There are hence more
values to discuss: the positive and negative predictive values of the test.
Positive predictive value is the percentage of true positives among all test
positives, negative predictive value correspondingly the percentage of true
negatives among all test negatives. The predictive values of a test depend on the
accuracy of the indicators on which the test is based.
93
Hampapur, A. et al. (2005), ‘Smart video surveillance’, IEEE Signal Processing Magazine, March: 38-51.
See: Zureik, E. with Hindle, K. (2004) ‘Governance, security and technology: the case of biometrics’ Studies in Political
Economy, 73: 113-137.
95
See: Grayling, A.C. (2005) In Freedom’s Name: The Case Against Identity Cards, London: Liberty.
94
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9.11.4.
As the accumulation of personal data enables predictive, pre-emptive and
preventative surveillance to occur in a wider variety of settings, the
imperfections in statistical methods could have far-reaching consequences for
those falsely identified. Such errors can do even more than limit access to
places or services: in medical surveillance, they may be life-threatening, and
they are far more common than most people realise. And in fact only the newest
forms of biometric technologies – e.g. DNA typing and facial recognition –
have been submitted to testing that give us some basis for estimating error rates,
and the methodologies used for estimating error rates are less precise than those
used for medical technologies. The best system tested by the US military’s
Facial Recognition Vendor Tests (FRVT) in 2002 reached only 74%
identification under ideal conditions, and this test did not deal with more
complex issues of the prevalence of faces being looked for within a population.
Facial recognition cannot under realistic circumstances provide any kind of
reliable security even against known terrorists.
9.11.5.
For DNA, it has been assumed even in courts that DNA identification is
in fallible. However for forensic identification purposes, only a few small
segments of the entire DNA string are tested and only series of repeated base
pairs (called ‘stutters’) within the so-called ‘junk’ DNA are shown in the socalled profile. However whilst a negative DNA test seems to be near perfect
tool for acquitting the innocent, false negatives being very rare, false positives
are surprisingly likely and a positive DNA test might be met with far more
scepticism than occurs in courts.
9.11.6.
Even less complicated recognition technologies like ANPR systems are
not 100% accurate in reading number plate details96 which means, inevitably,
that information in the database will be compromised, and that the system may
well lead to a person’s vehicle being wrongly identified as associated with
known criminals. This issue of misidentification on police databases was most
recently illustrated when the Criminal Records Bureau revealed that around
2,700 people have been wrongly identified as having criminal convictions. As a
consequence of the incorrect information contained in their data-doubles, a
number were refused jobs. The problem of the quality of the data held on the
PNC has been highlighted by a number of reports from the Police
Inspectorate;97 the most recent noted that 22% of records input to the PNC at
force level still contained an error, even when checked by a supervisor.98 The
prospect of the National Police database also brings dangers as low-grade
intelligence of uncertain provenance is made available more widely and used as
the basis for risk based decision-making by various agencies.
9.12.
Technological Lock-in and Regulatory Lag
9.12.1.
Technological failure or inadequacy can therefore result in worse
outcomes for life-chances than a successful technological system. However this
cannot be used as an argument for the answer to be merely, ‘better
technologies’. Surveillance is the first port of call in response to any kind of
problem is a strongly managerialist solution, frequently proposed to
96
PA Consulting (2004) op cit. n.51, suggest that the accuracy read is around 96%, which may sound high, however, even if
only one percent of licence plates are incorrectly read and recorded on the data base, this would mean potentially up to half a
million erroneous number plates logged each day.
97
See for example HMI Constabulary (2002) Police National Computer: Data Quality and Timeliness, Second Report, London:
HMI Constabulary.
98
HMI Constabulary (2006) Police National Computer Compliance Report: Avon and Somerset Constabulary, p.16, para 2.5.1
http://inspectorates.homeoffice.gov.uk/hmic/inspect_reports1/pnc-audits.html/a-and-s-pnc06.pdf?view=Binary
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governments by management consultants who operate on measurement-based
world views. Surveillance technologies therefore get promoted
unproblematically as ‘the answer’ to multiple threats, most recently to the threat
of terrorism. For example, one conservative American journal called for a dense
urban infrastructure of automated software systems and micro-sensors:
‘Dispersed along roadsides, hills, and trails, they will report just about anything
that may interest us—the passage of vehicles, the odor of explosives, the
conversations of pedestrians, the look, sound, weight, temperature, even the
smell, of almost anything’99.
9.12.2.
However the more that states, organisations, communities and people
become dependent on surveillance technologies, the more there is an apparent
‘lock-in’ which prevents other options from being considered, and a
comprehension gap which increases a dependence on expertise outside the
democratic system. ID cards are a key case in point and will inevitably increase
our reliance on those providing both technological and commercial expertise.
Whilst most politics now has technological components, regulators are
constantly running behind technological innovation, unable to understand ‘how
it works’. There is therefore a significant regulatory lag resulting from the lack
of knowledge and understanding behind technological development. In this
constant chase, one has to ask whether states possess the necessary tools to
carry out meaningful regulation of increasingly complex surveillance
technologies and practices. The question that frequently arises with all
technological development is whether ‘the genie can be put back into the
bottle’. Patent holders and vendors tend to be silent on the reversibility of
devices and systems.
10. Surveillance Processes
10.1. Several key processes make up the operation of the surveillance society. As we
have seen, one of the most significant developments is how surveillance, that was
once reserved for the ‘suspect’ or ‘deviant’, has become extended to cover the
majority of the population, which can then be sorted, categorised and targeted.
10.2.
Social Sorting, Categorisation and Targeting
10.2.1.
Social sorting can be observed in many areas: in the marketplace,
consumers continually supply business with their consumption data, they are
part of an evolving feedback loop that binds acts of consumption with the
gathering of transaction-generated data.100 Consumers have come to expect that
forms of personal data will be required of them in economic transactions.
Moreover, they are often rewarded for providing personal information, (for
example, when they benefit from loyalty programs), but otherwise do not
believe that consumer surveillance has any effect on their day to day lives. Yet
in this process, consumers are implicated into a system that perpetuates and
reinforces systems of stratification, building up categories based upon their
participation.
10.2.2.
In the workplace, the call centre industry is a key example. Call centres
now rank order customer accounts according to their relative spend. The higher
the spend, the greater a customer’s value is to the organisation, and so when
99
Huber, P.W. and M.P. Mills (2002) ‘How technology will defeat terrorism’, City Journal 12(1) http://www.cityjournal.org/html/12_1_how_tech.html
100
30
Detailed in: Elmer, G. (2004) op cit. n.56.
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these customers call for service, they are routed into shorter queues and
answered by more skilled employees. Moreover, the customer profile is seen as
critical when recruiting call centre employees, who are now assessed for social
and lifestyle competencies which match those of the market segment they are
serving.
10.2.3.
Telecommunications companies (Network Operators, Internet Service
Providers, Content Providers) routinely gather and manipulate the personal data
they hold about their own customers in a similar vein as do other private sector
organisations, to sort and categorise those customers as consumers. Additionally
however, for the private sector the distinction between restricted billing
(personal) data and fully archivable traffic data is important, particularly for
marketing campaigns, such as those conducted via SMS (short message service,
or text).101
10.2.4.
The mobile phone is regarded by consumers and the telecommunications
industry as a personal communication device and this ability to enable
interaction with users is what makes mobile data economically valuable. At the
same time, the mobile phone number as index is treated as an impersonal piece
of information. The index is nevertheless sufficiently precise to allow data
mining techniques to find personal data out of supposedly impersonal data.
Telecommunications surveillance by corporate entities therefore potentially
sorts consumers by their economic value to the organisation, and may do so on
the basis of unregulated transmission data, as well as the billing data protected
under data protection legislation.
10.2.5.
The climate of heightened national security concerns is also intensifying
the drive to ‘social sorting’ at national borders.102 Where people can verify their
identity and authenticate their activities, arguably their experience of crossing
borders is one of expedited travel, Of course, the trade-off here is the
submission of personal data, biometrics and access to private information. At
many air, sea and land ports of entry it is now common, for example, to see ‘fast
track’ lanes for expedited crossing, for example the ‘Privium’ system at
Schiphol Airport in the Netherlands, which uses an iris-scan in place of lengthy
queues for passport control. Such privatised spaces of ‘trusted traveller’
experience, though, do raise questions of data protection and privacy.
Moreover, the growth of expedited border security sorts people and transactions
into categories of risk that allows greater surveillance to be applied to those who
do no or cannot enter the private spaces.
10.2.6.
Finally, the UK’s proposed ID system would have the capacity to sort
between those eligible for services or access, and others. Less-than-visible
mechanisms will also operate, that skew the system against those already likely
to be disadvantaged. It is this ability to engage in social sorting that may in the
long term be even more insidious than the fears about reduced mobility in
countries where police may demand ID documents at any time.103 Such social
sorting tends to produce second class citizenship rather than supporting a more
solidaristic and egalitarian practice.
10.2.7.
Categorisation involves sorting populations into categories and then rank
ordering within and between those categories. It is at the heart of most scientific
101
Green, N and Smith, S. (2003) ‘“A spy in your pocket?” the regulation of mobile data in the UK’ Surveillance & Society 1(4):
573-587. http://www.suveillance-and-society.org/articlesv1i4/pocketspy.pdf .
Lyon, D. (2003) op cit. n.7; Lyon, D (ed.) (2003), op cit. n6.
103
Lyon, D. (2004) ID Cards: Social Sorting by Database, OII Issue Brief 2004; Oxford: Oxford Internet Institute.
102
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and management practice104. And states and institutions have been using such
systems for many years, from examinations and gradings to having prisoners,
soldiers and others wear particular recognisable clothes (uniforms), and, in
extreme cases such as Nazi Germany, in wearing signs of categories like the
yellow star for Jews worn on clothes, and the tattooing of concentration camp
inmate numbers on the skin.
10.2.8.
One of the primary categories for the state is that of citizenship.
Citizenship and surveillance belong together in the modern world. Extensive
records on each individual are needed to inform government departments about
who has a right to what.
10.2.9.
Since the later part of the twentieth century, most of these records have
been computerised and are increasingly linked and automated. The early
twenty-first century has seen the development of several new national
identification systems. The UK in Parliament in March 2006 approved plans, in
response to 9/11 and the ‘war on terror.’ Citizen identification is not merely
about cards. New national ID card systems, are based on a national registry, a
database (or databases in the UK case) containing personal information that can
be searched and checked independently of any demand to see the card held by
the citizen. The unique identifier contained in the card is also the key to unlock
the database(s) and thus is itself a source of considerable power.105 . It makes it
possible to obtain access to several kinds of database; the more multi-purpose
the system the more databases are likely to be involved. If the UK ID card
system is to guard against ‘identity theft,’ then commercial data relating will be
accessible as well as government data.
10.2.10.
Second, the public spaces and physical and electronic infrastructures of
cities are rapidly being restructured in ways that directly exploit the capabilities
of new surveillance technologies. On the way out are universal and standardised
provisions of access to services, spaces and infrastructures, based on notions of
democratic citizenship, open access or traditional ideas of public services and
spaces either freely accessible to all at the point of consumption or charged
through universal tariffs. On the way in are notions of targeted services,
infrastructures and spaces, accessible only to these who are allowed access, and
priced very differently to different people and places.
10.2.11.
Profiles provide the means for companies to target their marketing to a
narrower band of consumers, thereby decreasing marketing costs and increasing
response rates. This is frequently far cheaper than mass marketing channels of
television, radio or print marketing. For example, a bank that has an agreement
with a travel company may be able to market family holiday destinations to
those it has categorised as families, with a different set of travel options to those
who are retired.106 Third party vendors may also provide lists of consumers who
enjoy gardening (perhaps based on a magazine subscription) or of purported
frequent travellers (perhaps drawn from survey research). Continued
developments in the application of real time geographic data to consumer
104
105
Bowker, G. and Star, S. L. (1999) Sorting it Out: Classification and its Consequences, Cambridge MA: MIT Press.
See e.g.: Clarke, R. (2006) ‘National Identity Schemes: The Elements’
http://www.anu.edu.au/people/Roger.Clarke/DV/NatIDSchemeElms.html
106
Again, there are privacy limitations to the use of this information and the sharing between companies, yet certain clauses do
allow for this scenario to occur, particularly if the marketing material comes directly from the primary data owner, in this case,
the bank.
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profiles will provide yet another layer of data to assist corporations in targeting
marketing campaigns to particular consumers.
10.2.12.
Geo-referencing of surveillance brings with it major risks. Services and
advertising can be targeted only at those deemed more profitable. Commercial
judgements, based on continuous connections to credit registers and the like,
could lead to the regular exclusion and targeting of people deemed to be
commercially marginal within increasingly commercialised and gentrified town
and city centres.
10.2.13.
For the police, the classification of a ‘persistent’ or ‘prolific’ offender is a
statistical category determined by the number of convictions, over a particular
period of time, an individual has accrued on the Nominal Index contained on
the Police National Computer. This classification makes an individual a
candidate for intensive targeting and intervention by a range of criminal justice
agencies as part of the persistent offender strategy.107 Once selected a candidate
will be entered on the J-track system for tracking and managing persistent
offenders at all stages of the criminal justice system.
10.3.
Unintentional Control
10.3.1.
However, whilst social sorting is both an intention and an outcome of
many forms of surveillance, surveillance should not be taken to be identical
with direct social control.108 While social control, the strict regulation of
personal behaviour to order society, can be the intention of surveillance (and
has been historically), in most contemporary western cases the controlling
effects of surveillance are indirect or unintentional.
10.3.2.
The intention of surveillance is often simply to manage efficient and
swift flows of goods, people and information.109 This can mean people, for
example in London, the Underground’s Intelligent Pedestrian Surveillance
(IPS) system110 aims at identifying places where crowd flow is blocked, and the
‘Oyster’ smart card, used by 5 million Londoners to access London’s public
transport system, is aimed at speeding the movement of people through the city.
It can mean people indirectly, for example, the congestion charge, which aim to
reduce the numbers of cars on London streets through an ANPR system
scanning car number plates for non-payers. Another example is the use of
‘Customer Relationship Management’ (CRM)111 in marketing which actively
seeks personal information about current and potential clientele in order to
establish a continuing relationship that goes beyond a commercial
transaction.112 It can be entirely about goods: for example the use of RadioRFID chips in shipping containers and consumer goods.
10.3.3.
However, what spells ‘efficiency’ for one person spells ‘social control’
for another: this is particularly true for strongly personalised systems like ID
107
Home Office (2004) Prolific and Other Priority Offender Strategy Initial Guidance,
http://www.crimereduction.gov.uk/ppo_e.doc
108
Lianos, M. (2001) Le Nouveau Contrôle Social: toile institutionnelle, normativité et lien social. Paris : L’Harmattan-Logiques
Sociales.
109
Graham, S. and Wood, D. (2003) ‘Digitising surveillance: categorisation, space and inequality,’ Critical Social Policy, 23:
227-248.
110
Hogan, J. (2003) ‘Smart software linked to CCTV can spot dubious behaviour’, New Scientist, 11 July,
http://www.newscientist.com/article.ns?id=dn3918 .
111
CRM involves the electronic dispersion of personal data to analyze and create customised long term relationships with
customers.
112
Morgan, R.M., and Hunt, S.D (1994) ‘The commitment-trust theory of relationship marketing,’ Journal of Marketing 58: 2038.
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records retrieval, which involves consistent and unique identifiers for individual
citizens.113
10.4.
Information Sharing
10.4.1.
To allow for social sorting, information needs to be accurate and readily
available. In many countries, including Britain, there is a trend towards more
integrated, ‘joined-up’ public services, often through partnerships and
teamwork across several agencies. Increasingly, a variety of local partnership
arrangements bring together a variety of agencies and professions so that their
skills can be better focused on providing services to individuals in a more
integrated way.114 The heart of New Labour’s modernisation agenda has been to
transform a set of disparate agencies into a coordinated and joined-up system
with a huge investment in IT provision.
10.4.2.
One effect of this key development is that the boundaries that were once
thought to have provided certain, albeit fragile, safeguards to privacy and limits
to surveillance are called into question, often leaving both the public and the
service-providers bewildered about how personal information is, and should be,
managed. Personal data flow into new channels – some of them private –
through organisations that never before had access to them, and whose
traditions of confidentiality and privacy protection may differ substantially from
each other, and from those of agencies in the public sector.
10.4.3.
Combating fraud is a major example. The Social Security Administration
(Fraud) Act 1997 gave strong power including data sharing and matching,
followed by another Act in 2001 authorizing access to individuals’ bank and
savings accounts and utility company records, and – in some cases – to private
sector payrolls. Under the 1997 Act, the Department for Work and Pensions
(DWP) conducts many routine matches of personally-identifiable data,
including records of housing benefit, social security, national insurance,
taxation, as well as gas, electricity and telephone records. DWP proactively
checks claimants’ identity and dependents with other public bodies. There is
also a very large data-matching exercise carried out every other year by the
Audit Commission under the National Fraud Initiative (NFI). The purpose is to
help detect fraudulent and excessive payments made to claimants from public
funds.115 Housing benefit fraud is still the primary problem, but the NFI is now
very wide-ranging in the information it accesses. Data from local and health
authorities’ payroll and pensions records are used, along with records on
tenants, housing benefits, social security files and information on asylum
seekers. Estimates of the monetary volume of incorrect payments vary greatly,
but are supposed to be in the low billions of pounds, while the results of
eliminating them have been measured only in much lower amounts, estimated
to have been £126 in 2004-5, including Scotland.116 This is a tiny fraction of
what is paid out in benefits, and includes overpayments, which are not
fraudulent. Although fraud is fraud, questions have been raised about the
proportionality, transparency and other privacy implications of data-intensive
methods of plugging the hole in public expenditure.
113
For a critical view from a computer scientist, see: Clarke, R. (2006) ‘National identity cards? Bust the myth of 'security über
alles'!’, http://www.anu.edu.au/people/Roger.Clarke/DV/NatID-BC-0602.html
114
6 et al. 2005 op cit. n.24; Bellamy et al., 2005 op cit. n.24.
115
Audit Commission (nd.) National Fraud Initiative (NFI), http://www.audit-commission.gov.uk/nfi/ .
116
Audit Commission (nd.) National Fraud Initiative 2004-5, http://www.audit-commission.gov.uk/nfi/downloads/NFI_200405Summary.pdf .
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10.4.4.
A recent Home Office consultation paper,117 seeks further powers against
organised and financial crime, complaining that ‘data sharing with other parts of
the public sector is highly patchy, while sharing across the public-private divide
is rarely even attempted’.118 It calls for an improvement in these flows of
information, including – with regard to Suspicious Activity Reports – matching
data between the new Serious Organised Crime Agency (SOCA) and the
databases of a host of government bodies, including Her Majesty’s Revenue and
Customs, the Driver and Vehicle Licensing Agency, DWP, and the Passport
Service. There are now new initiatives including the new Ministerial Committee
on Data-Sharing, MISC 31,119 with a remit to ‘develop the Government's
strategy on data-sharing across the public sector’.
10.4.5.
As we have seen, the police with a host of new databases recording
details of citizens and offenders, and to ensure that information is shared
between all the agencies involved in delivering the Government’s crime
reduction programme. The effect of the massive investment in IT systems and
software across the criminal justice system has been to allow for the integration
and cross referencing of disparate databases held across police and criminal
justice agencies. In effect this means there is now one ‘master’ file. For
instance a vehicle passes under an ANPR system, its plate number is extracted,
this is then checked against the DVLC register of licensed vehicles and their
registered keepers. With this information, it is then potentially possible to
access all the other databases available on the PNC, for instance the database of
fingerprints, criminal history, or violent and sex offenders register, and
insurance and MOT databases. The extent of this integration is illustrated by
Hertfordshire Constabulary’s ANPR system which accesses 40 nationally or
locally held databases when tracking a vehicle120.
10.4.6.
However, information sharing goes further. With the advent of multiagency approaches to reducing the risk of crime and re-offending, the
boundaries between criminal justice information and the information held by
others are considerably blurred. For instance youth offending teams consist of
representatives from police, probation Service, social services, health,
education, drugs and alcohol misuse services and housing officers and if they
have all signed an information sharing protocol, they may exchange information
on individuals and families under their jurisdiction.121 Similarly, the
Identification Referral and Tracking System, developed in response to the
recommendation of the Climbié Inquiry, created an information hub which
alerted practitioners to all the information held by the entire range of children’s
services including police and youth offending teams.122
10.4.7.
It works across national borders too. For example, new ID systems are
subject to globalising forces as governments seek to ‘harmonise’ identification
procedures; this is facilitated by the new technologies. The International Civil
Aviation Organization is prominent in this, setting standards for biometric
passports and, indirectly, national smart ID programs. International conventions
117
Home Office (2006) New Powers Against Organised and Financial Crime (Cm 6875). London: The Stationery Office.
ibid.: 12
119
Cabinet Office (2006) Ministerial Committee on Data Sharing (MISC 31)
http://www.cabinetoffice.gov.uk/secretariats/committees/misc31.asp .
120
Hertfordshire Constabulary (2005) ‘The human chassis number’, Application for Tilley Award,
http://www.popcenter.org/Library/Tilley/2005/05-02.pdf .
121
For a discussion of Youth Justice Teams, see: Newburn, T. (2004) Crime and Criminal Justice Policy, Harlow: Longman,
211ff.
122
For a discussion of Climbié case, see Parton, N. (2006) Safeguarding Childhood: Early Intervention and Surveillance in Late
Modern Society, Basingstoke: Palgrave Macmillan, Ch3.
118
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are held to develop ‘globally interoperable systems’ for identification in the
field of ‘MRTDs’ (Machine-Readable Travel Documents).123 Whilst this does
not mean information must be shared, it provides the necessary infrastructure to
enable it.
10.4.8.
The connections between different telecommunications corporations are
potentially global. In the case of both mobile telephony and Internet provision,
network operators and Internet Service Providers operate transnationally, with
either subsidiary or contract organisations transmitting data between them. The
challenge facing regulatory bodies therefore becomes even more complex.
10.4.9.
There is an increasing general tendency in the private sector in to try to
integrate the vast layers of data that comprise most of the value in consumer
surveillance, with many companies actively seeking to enlarge their current
databases. Some firms have developed mutual use policies with other
companies. Partners within coalition programmes such as those found in loyalty
marketing often have agreements for some sharing of data, usually through the
main coalition partner, but there is also a trend toward the creation of data
cooperatives in which members share pooled sets of data. The Nectar card
operated by Loyalty Management UK has over 50% of the UK population
holding one of their loyalty cards. 216 catalogue companies in the UK are
signed up to the Abacus data-sharing consortium, with information on 26
million individual consumers enhanced by Claritas’ Lifestyle Universe. This
overlays income, lifestyle, and life stage data at an individual level for each of
these customers.124
10.5.
The Blurring of Public / Private Boundaries
10.5.1.
However, whilst both public sector and private sector share information,
there are also increasingly blurred boundaries between state and private sector
interests, as more and more tasks of government are carried out through a
sometimes complex combination of public, private, voluntary-sector and market
mechanisms, and sometimes by only one of these types. Increasingly, a variety
of local partnership arrangements bring together a variety of agencies and
professions so that their skills can be better focused on providing services to
individuals in a more integrated way.125 Where state information is available for
private use, as has been suggested with the National Identity Register (NIR),
concerns have to be raised about the limits to the consent of people as citizens
and as consumers, and where those boundaries lie.
10.5.2.
Direct privatisation can sometimes be the key to increased surveillance.
Telecommunications is a key case in point: alongside the diversification and
convergence of both technologies and functionalities in telecommunications, the
diversification of telecommunications markets have vastly extended
surveillance. The early 1980s saw the creation of British Telecommunications
(BT) as a separate entity, its almost immediate privatisation, the opening up of
market competition in the telecommunications industry, and the creation of the
Office of Telecommunications as the industry regulator. The fragmentation of
organisational responsibilities has meant that the range of organisations
potentially retaining and mining telecommunications data has risen
exponentially.
123
See: ICAO (2003) MRTD: Machine Readable Travel Documents, http://www.icao.int/mrtd/Home/Index.cfm .
Evans, M. (2005) ‘The data-informed marketing model and its social responsibility.’ in Lace, S (2005) op cit., n.6.
125
6 et al. 2005 op cit. n.24; Bellamy et al., 2005 op cit. n.24.
124
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10.5.3.
Even border surveillance practices are being privatised. The evidence is
that the outsourcing of state border security to private commercial companies –
IT multinationals, major weapons and military hardware manufacturers,
consultants, risk analysts, banks, identity management and biometrics
corporations – is a burgeoning practice. For example, in 2004, IBM won a £15
million contract for ‘Project Semaphore’, the first phase of the UK
government’s e-Borders programme. Project Semaphore, in a similar
programme to USVISIT will integrate databases on airline passengers entering
and leaving the UK. Together with ‘Project Iris’, also trialled by IBM, the
programme will link biometric data to integrated databases that can identify
anomalous patterns of behaviour. IBM is one example of a vast array of
companies who now have a designated ‘homeland security practice’ offering
data management, biometric and identity services to governments. Other
notable players are: Accenture, which leads the $10 Billion US Smart Borders
Alliance in the US; Oracle, whose ubiquitous identity management systems are
now being used by the UK and US as ‘homeland security solutions’; and
consumer electronics and telecoms companies such as Ericsson, who are
contractors for the US Strategic Border Initiative (SBI).
10.5.4.
In many instances the biometric border schemes are linked to frequent
flier programmes of other loyalty cards and, in the US, the trend is toward
corporate sponsorship by credit providers such as Mastercard. The expansion of
privatized ‘ID guarantee’ has the potential to render obsolete some of the
debates about national ID cards and biometric passports.
10.5.5.
There is also an apparent move to incorporate citizen groups and watch
groups into border surveillance practices. This is in its most advanced for in the
US, where programmes such as Highway Watch, Citizen corps, Coast Watch
and River Watch train citizens to ‘look out for unusual activities’. However,
there is one element of this form of everyday surveillance that has particular
resonance in the border surveillance domain. For many of the private companies
bidding for, or awarded, border surveillance contracts, consumer electronics
such as mobile phones, PDAs and palm tops have played a central role. IBM,
for example, contracted for the UK e-borders system, also sponsored the US
homeland security citizenship programme that allowed for personal computers,
mobile telephones and consumer electronics to digitally connect neighbourhood
security to homeland security.
10.5.6.
Finally, states can seek to dominate or subvert international or private
organisations that supply information products or which regulate information
infrastructure. The American NSA has established a working relationship with
most of the major U.S. software and hardware companies, and through these
relationships has ensured that encryption systems within export versions of
software in particular are less sophisticated than US internal market versions,
and are more easily crackable. The NSA and GCHQ also do deals with
International Licensed Cable (ILC) companies to allow interception. The NSA
in particular has been reported to have representatives on transnational
standards-setting committees, in particular the MFA Forum (previously the
Frame Relay Forum), an unaccountable body responsible for the development
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of common standards for data transfer, and which also contains all the major
telecommunications and computer companies from industrialised nations126.
10.5.7.
There is thus a multiplicity of surveillance agents and agencies often with
their own databases, which are increasingly subject both to commercial
pressures to purchase and sell valuable information and to state desires to
accumulate information for anti-terrorist, anti-fraud and law-enforcement
purposes.
11. The Social Consequences of Surveillance
11.1. We now turn more overtly to the social consequences of the surveillance
technologies and processes we have summarised in the previous sections. Critiques
of surveillance are most frequently framed in terms of privacy and this is
undoubtedly a vital area, although we would prefer to discuss it as one aspect of
individual autonomy. However we would also like to emphasise the far less
frequently discussed outcomes of choice and consent; and most importantly, the
sorting, categorisation and targeting processes on the life chances of individuals and
whole groups or communities, their relative mobility, and access to opportunities.
11.2.
Autonomy: Anonymity and Privacy
11.2.1.
The autonomy of individual persons has multiple components, two of
which we consider here to be particularly affected by surveillance. The first is
anonymity. Anonymity has long seen as one of the key aspects of modern life,
particularly in the city. Surveillance can certainly help to create many new
services, and a speeded-up urban lifestyle characterised by individually tailored
services, continuous electronic and physical interaction, an always-on digital
economy, and the transcendence of many of the time and space barriers that
traditionally acted to inhibit urban life. However one of the first casualties of
pervasive surveillance, and particularly of ID systems, is the anonymity that
allowed people to escape from the intense human surveillance strictures of
small communities. In many ways, a general initial condition of anonymity
allows the individual the ability to make their own identity through their actions
and relationships.
11.2.2.
Of the one and a half million people sentenced by the courts in 2003
some 107,000 were sentenced to immediate custody.127 A sentence of
imprisonment not only involves a loss of liberty, but also the second component
of autonomy, privacy. In UK prisons, offenders all subject to almost constant
surveillance. Since 1996, this surveillance regime has included mandatory drug
testing with an expectation that between five and ten per cent of the prison
population would be subject to a random test each month.128 In 2004/5 a total
of 51,484 tests were carried out, of which 11.6 percent were positive.129 Even
once released from prison, offenders are also increasingly subjected to
electronic monitoring either as a condition of early release from prison under
126
Seeberg, K. and Elkjær, B. (1999) ‘Tele Danmark in a club with Echelon spies’, Ekstra Bladet (Denmark), 26 September. The
MFA Forum can be found at http://www.mfaforum.org/ .
127
Home Office (2005) Sentencing Statistics 2003: England and Wales. London: Home Office, 3.
128
Singleton, N. et al. (2005) The Impact and Effectiveness of Mandatory Drug Testing in Prisons, Home Office Research
Findings 223, London Home Office.
129
HMPS (Her Majesty’s Prison Service) (2005) Her Majesty’s Prison Service Annual Report and Accounts, Annex 1: Statistical
Information, London: Stationery Office, 110.
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the Home Detention Curfew Scheme130 or as a condition of being released on
parole.131
11.2.3.
Another frequently relatively constrained population is that of patients.
The patient’s autonomy, dignity, and right to privacy has always been of
significant concern. Health data are regarded as ‘sensitive’, although some are
more sensitive than others. Many professionals worry whether traditional
assumptions about confidentiality can be maintained when it comes to, for
instance, making ‘single shared assessments’ of certain patients who are dealt
with by social care as well as by health professionals, or where data on mentalhealth patients may require that data be shared with yet other agencies,
sometimes including the police. For nearly ten years, a system of ‘Caldicott
Guardians’, named after the author of a report that looked into the
confidentiality of identifiable patient data in the NHS,132 has been in place. This
means that every NHS body has a designated person who oversees
confidentiality, controls access to patient information, helps to develop
protocols for information-sharing across organisations, and works to ensure
good practice concerning patient data. This system is part of a wider
‘information governance’ framework in the NHS, and is now also being used in
social care agencies. But whether or not the ‘guardian’ system has worked well
– the results have been patchy and there are many shortcomings, owing to
factors including the complexity of ‘eHealth’ information technologies and
information flows, inadequate resources and training, and weak institutional
role support133 – controversies over the disclosure of health data have arisen in
the context of anti-terrorism, crime-fighting and Audit Commission
investigations. The Department of Health has formed a confidentiality strategy
and a code of privacy and confidentiality practice,134 and the Information
Commissioner has produced guidance for the health sector when anxiety
developed over the sharing of NHS data with other agencies.135
11.2.4.
Privacy questions are also endemic to workplace surveillance. When
discussing privacy issues in this domain, it is important to focus on the full
range of privacy concepts: privacy and the human body, privacy in social
relations, and privacy and personal space as well as information privacy136. It is
also important to consider fully the implications of disclosure: whether the
employee had given their authority for boundaries relating to their body, social
relationships, personal space and information to be crossed; and whether they
were aware of who was going to be party to that information.137
11.2.5.
Drug tests, in particular, can deter many from applying for jobs where
they are likely to be tested. The tests do not distinguish between heavy and
130
The HDC scheme allows for those sentenced to between 3 months but under four years imprisonment to be released between
2 weeks and four and a half months early on a curfew enforced by electronic monitoring. In 2004/5 19096 people were release
early under the scheme. See: NPS (2006) op cit. n. 82.
131
ibid.
132
Department of Health (1997) Report on the Review of Patient Identifiable Information (The Caldicott Report). London:
Department of Health.
133
NHS Scotland (2004) A Review of the Work of the Caldicott Guardians,
http://www.confidentiality.scot.nhs.uk/publications/Caldicott%20Review.pdf .
134
Department of Health (2001) Building the Information Core: Protecting and Using Confidential Patient Information. London:
Department of Health; Department of Health (2003) Confidentiality: NHS Code of Practice. London: Department of Health.
135
Office of the Information Commissioner (2002) Use and Disclosure of Health Data: Guidance on the Application of the Data
Protection Act 1998. Wilmslow: Office of the Information Commissioner.
136
Laurent, C. and Privacy International (2003) Privacy and Human Rights 2003. An International Survey of Privacy Laws and
Developments, Washington DC / London: Electronic Privacy Information Centre (EPIC) / Privacy International.
http://www.privacyinternational.org/survey/phr2003/ .
137
Ball, K. (2001) ‘Situating workplace surveillance: ethics and computer based performance monitoring’, Ethics and
Information Technology, 3(3): 211-223.
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recreational drug users and abstinence a few days before the test will usually
yield a negative result.138 Employers’ capacity to record and store employee
communications also raises privacy concerns, first because private
conversations may contain confidential information (e.g. a credit card number),
second because this information may be stored on offshore servers which fall
under different jurisdictions, and third because of the relative coverage and
broadcast of relevant policy. Appropriate policy is difficult to define in respect
of covert surveillance. There is some debate as to whether organisations are
required to provide a general notice to staff that they may be subject to it, or
whether this can be avoided altogether. The collection of employees’ personal
information and other information about their lives can compromise privacy if
employees do not authorise the disclosure of their information and it is
broadcast to unknown third parties.139
11.2.6.
In this context, we must also return to the proposed national ID system. A
recent House of Commons Select Committee report140 has complained about the
disturbingly unclear range of proposed functions of ID cards. This remains the
most controversial British issue involving potential threats to privacy through
the surveillance involved in the establishment and use of the NIR created under
the Identity Cards Act 2006. While ID cards will serve traditional Home Office
functions regarding law enforcement (broadly speaking), immigration and
asylum, national security and counter-terrorism, they are also intended to
‘secure the efficient and effective provision of public services’ in ways that still
sketchy, but that potentially involve a large array of departments and agencies
which relate to specific service fields. A key element is the provision of a
unique reference number for each person, facilitating the integration of a vast
number of data sources. Moreover, indications that government foresees
interaction between the public and private sectors in the use of the ID card,
including access to the NIR, adds further concerns about limitations and privacy
safeguards for this potential extension of surveillance.
11.2.7.
Although data protection and privacy laws141 were developed to limit
such activities, these have found it very hard to keep pace with technical change
or the ingenuity of those trying to sidestep regulation. If the UK ID card system
is, as advertised, to guard against ‘identity theft,’ then this suggests that
commercial data relating to banks and credit cards will be accessible as well as
those relating to government departments such as immigration or health.
11.2.8.
For privacy regulators there is an increased pressure on limiting the uses
to which personal data can be put, the length of time it can be stored and so on.
The use of everyday consumer telecommunications electronics to convey data,
information or images from private domains to the sphere of public authorities
blurs the boundaries between public and private spheres. As the ACLU have
commented in their study of a new surveillance network, businesses and
citizens are being ‘conscripted into the construction of a surveillance society’.142
11.2.9.
Consumer surveillance, although frequently entered into because of a
voluntary decision (to buy or not) also has significant privacy implications
138
Drug tests merely indicate the presence of various recreational drugs. Commentators refer to them as ‘intelligence tests’: to
fail one the candidate would need to be very stupid!
139
For more on email monitoring, see: Lloyd, J. (2006) ‘Management email monitoring brings Big Brother to mind’. Receivables
Report for Americas Health Care Financial Managers 21(1): 6-7
140
House of Commons Science and Technology Committee (2006) Sixth Report, HC 1032, London: The Stationary Office.
141
See e.g.: UK ‘Data Protection Act’ 1998, http://www.opsi.gov.uk/acts/acts1998/19980029.htm
142
Stanley, J. (2004) The Surveillance-Industrial Complex, Washington DC: ACLU.
http://www.aclu.org/FilesPDFs/surveillance_report.pdf
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suggesting that the breadth and depth to which consumer surveillance may go
should be limited. Privacy legislation within the European Union and in
countries that have enacted similar omnibus legislation stipulating limitations on
the collection and use of personal data, require both that purposes be specified
and security safeguards remain in place for personal data. Two of the data
protection practices included in the legislation are incompatible with the data
mining techniques that underlie consumer surveillance. First, the use of data
cannot be clearly specified to the consumer. It is impossible to predict the
results of data analysis conducted with technology designed to discover nonobvious relationships and patterns within sets of data. This means that
companies are unable to inform customers fully as to the use of their data, as the
categories produced by data analysis are emergent. Second, because the
principle of limiting the use of information defeats the very purpose for the
collection and use of consumer data. The increase in data and potential variables
increase the system’s predictive accuracy.143 Beyond the issues with these
prinicpals even though privacy legislation limits the use of personally
identifiable information, information stripped of these identifiers can continue
to be used for consumer surveillance practices. This in turn can have the same
effects for those categories of high-risk consumers.
11.2.10.
Of particular interest in mobile telecommunications is the differentiation
between the storage and monitoring of ‘transmission’ information, necessary for
communications to take place (largely generated automatically), and ‘personal’
information such as name, address and payment details, thereby falling under
the auspices of relevant data protection legislation. Mobile phone network
operators and service providers gather and store a wide range of data as a matter
of course.
11.2.11.
For state law enforcement and political policing, the distinction matters
less. The Regulation of Investigatory Powers Act (2000) made traffic and
billing data available on request to UK law enforcement organisations. Under
RIPA, a senior officer is required to ask a telecommunications operator for
traffic data. The Interception Commissioner may exercise oversight after the
fact on data requests, but the investigating officer in any case need only justify
the request to a senior officer. By the end of 2002, the BBC was reporting that
law enforcement bodies had made over 400,000 requests for traffic data from
mobile network operators.144 For the law enforcement community, any claims
that the mobile handset has no relationship to the user, and that the collation and
processing of pseudonymised traffic data has no data protection implications,
appears to be inoperative.
11.2.12.
While privacy legislation does mitigate some of the concerns inherent in
consumer surveillance, its individualised focus and the hidden information
processing techniques means that social categories and their effects are
concealed from those directly affected by them. Genuine informational control
requires an increase in organisational transparency regarding data gathering and
information processing as well as clear indications of when the security of
personal data has been breached. The difficulty is in reconciling this
transparency with the demands of a highly competitive economy in which
transparency may in fact undermine the advantages gained through an
organisation’s data processing. Without finding this balance, whether through
regulatory regimes or ethically transparent corporate practices, the concern
143
144
For an extensive discussion of these issues with FIPs, see: Tavani (1999) op cit. n.60.
See n.80.
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remains that consumer surveillance will continue to perpetuate and amplify
social divides and sorting that is antithetical to democratic principles. Consumer
surveillance then stands to increase as a ‘cybernetic triage’ separating
consumers based on their presumed economic and political value rather than on
their initiative and self-determination.145
11.3.
Choice and Consent
11.3.1.
The next area is that of choice and consent. Choice has played a major
role in the debates about surveillance and data protection in North America. Yet
in the United Kingdom, it has had a somewhat lower profile in contrast other
means of protection.
11.3.2.
In medicine, there are several forms of consent: consent to treatment;
consent for information transfer; and consent for personal medical information
to be used for medical research. The key question in all cases is what
information has been provided to allow the individual to make that decision.
‘Informed patient consent’ to the use of personal data is required not least since
the gross abuses of medical science ethics perpetrated in the WWII
concentration camps. When patients are requested to release information into
large research databases, one has to ask whether all potential usages of data
over time can be foreseen, and whether new consent might be necessary in
future. As a consequence, there is often the additional requirement that data
collected for medical (including medical research) purposes only be used for the
specific purpose for which it was originally acquired. Any new purpose then
requires new information and a new signed consent form from each included
patient.
11.3.3.
This may seem then to be a clear example of the problem of choice and
consent in surveillance: can one chose whether or not to be surveilled if one
wants to live a normal life? How is it possible anymore to argue that we have
consented to surveillance? The issue of consent can be seen at work throughout
the criminal justice system. We do not consent to CCTV system monitoring us
as we walk though public space, and no one has consented to having their
vehicle movements logged at the ACPO’s ANPR Centre. Arrestees do not
consent, and are coerced, into providing fingerprint and DNA samples, which
will be permanently logged on the police national database, even if they are
released without charge. And, while a person cannot be forced to give a urine
sample to test for the presence of drugs, it is hardly a matter of choice, as
refusal can result in a fine, imprisonment or both. It is almost impossible for a
person to know how information is being used, and how it may, in subtle ways,
affect their lives; for instance, by increasing the chances that their vehicle is
stopped by the police, or the demand that they pay in advance for goods and
services.
11.3.4.
One answer might be to make state surveillance interactions with citizens
non-compulsory where this is possible, which is what has been proposed with
ID in Britain. However, this is largely an illusory answer, for once it is needed
for a range of service-access it will become de facto compulsory. Moreover,
existing identifiers relate to single roles, as drivers, consumers or tourists
whereas the ID card system gives the government powers to monitor activities
across a range of roles that include all of these as well as that of citizen.
145
42
This is what is understood as ‘the panoptic sort’ described in detail in: Gandy (1993) op cit. n. 24.
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11.3.5.
In the workplace, issues of consent are also not simple. There is debate
and differing attitudes across nations as to whether organisations are required to
provide a general notice to staff that they may be subject to covert surveillance,
or whether this can be avoided altogether. In Australia, for example, employers
are required to get permission from a magistrate to conduct covert surveillance
on employees from a magistrate. In the UK, under the Regulation of
Investigatory Powers Act (RIPA) 2000, if the business is protecting a
‘legitimate interest’ it can covertly intercept employee communications,
although it does have to comply with Data Protection Act requirements too. In
the case of mystery shopping, for example, opinion is split between those who
argue that the practice is unethical because of the levels of deceit, compromise
and the lack of consent involved.146 Others argue that employers need to
present the results of mystery shopping to staff, to raise awareness of it in a way
which will not compromise the research.147
11.4.
Discrimination: Speed, Access and Social Exclusion
11.4.1.
Discrimination, in the form of differential speed, ease of access and
various degrees of social exclusion is a major outcome of the social sorting
processes produced by surveillance. The old bureaucratic logic of government
administration now works its way through both biometrics and networked
identification systems, into a world fraught with subtle identities and
identifications. In this world those with access to resources are highly mobile –
international businesspersons, tourists and the like – and their identification
systems (from credit cards to frequent flyer cards) tend to accelerate ease of
movement. But for others, who are working (or worse, unemployed) migrants,
refugees or asylum seekers, not to mention those with distinctive ‘Muslim’ or
‘Arab’ names, these systems tend to militate against movement both within and
between countries.
11.4.2.
Governmental logic has changed. While older, twentieth century
understandings of citizenship stressed the inclusion of all eligible persons in
systems of health, welfare and legal protection, newer citizenship practices,
including ID systems, seem to stress exclusion of undesirable elements.148 Key
events, starting symbolically (though not historically) with 9/11 have catalysed
rapid growth of new surveillance and identification systems.149 The difficulty is
that many people are on the move, for many reasons and that ID systems are
sought that classify them according not only to citizenship but also to status –
temporary, permanent, national and so on. Searchable databases already
facilitate such social classification and categorisation.
11.4.3.
The intensified surveillance of urban life also involves powerful
processes of social exclusion. This is characterised by the creation of
disconnections for those people and places deemed in some way unprofitable or
risky. Crucially, then, the new surveillance technologies can thus forcibly slow
down certain people’s lives, making them logistically more, not less, difficult.
Much of this social sorting by surveillance systems now works automatically
(i.e. without human discretion), continually (i.e. 24 hours a day), and in real
time (i.e. without delay) through software. Very often, the motivation is
146
Shing, M.N.K. and Spence, L (2002) ‘The limits of competitive intelligence: is mystery shopping ethical?’ Business Ethics: A
European Review 11(4):343-353.
147
Wilson, A.M. (2001) .Mystery shopping: using deception to measure service performance,’ Psychology and Marketing 18(7);
721-734.
148
Bigo, D. (2004) ‘Globalized in-security: the field of the professionals of unease management and the ban-opticon,’ Traces, 4.
149
Lyon, D. (2003) op cit. n6; Ball, K. and Webster, F. (eds.) The Intensification of Surveillance, London: Pluto Press.
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overcoming the barriers of electronic and physical congestion facing affluent,
privileged or powerful people and places, as they confront the challenges of
living and operating in dense, urban, and increasingly mobile societies which
place a premium on networked connections and flows connecting to other
places.150 However once introduced, both access and blockage are increasingly
policed automatically,151 threatening a technological lock-in dividing
contemporary societies more decisively into high-speed, high-mobility and
connected and low-speed, low-mobility and disconnected classes.
11.4.4.
This can work itself deep into the very infrastructure of society. We have
seen how expedited border crossing can speed up the journeys of paid-up
members of frequent flyer programmes. In cities, commercial judgements,
based on continuous connections to credit registers and the like, could lead to
the regular exclusion and targeting of people deemed to be commercially
marginal within increasingly commercialised and gentrified town and city
centres. Algorithmic CCTV systems may embed social prejudice deep into the
very software that makes them work. With the discretion of camera operators
increasingly removed, the code within the software that ‘decides’ which
behaviours, appearances, faces and identifiers warrant further action, scrutiny,
or exclusion, out of the mass of a city’s or nation’s population, becomes the key
site for regulation. ID systems may also subtly classify populations according to
opaque criteria that skew the system against those already likely to be
disadvantaged. Such social sorting tends to produce second-class citizenship.
When cultural and national identity has become such a contested dimension of
life, carrying a heavy freight of life-chances and choices, memories and hopes,
it is ironic that parallel efforts are made to reduce it to machine-readable
formulae and algorithms for ease of bureaucratic, policing and corporate
administration.
11.4.5.
Exclusion is even found in the pricing structures for goods. With
Amazon.com already shown to be selling DVDs to different customers at
different prices, the question is raised whether regulatory intervention might be
necessary to ensure that mass commercial price-fixing does not emerge, for
example, based on the operation of automated RFID surveillance. Consumers
have become increasingly vulnerable within the personal information economy.
The tremendous reliance on particular technologies and unique numbers or
codes to indicate identity creates opportunities for informational abuse and
exploitation. Continuing innovations in data processing and increased
collections of different types of data lead to social sorting practices rife with
concerns for discrimination and exclusion.
11.4.6.
Whilst it is difficult to draw conclusions about workplace surveillance
and social exclusion, mainly because of the pre-existing occupational and social
structural determinants of labour markets, one area of workplace surveillance is
beginning to stratify opportunities for employment: e-recruitment. Sifting
through large volumes of CVs and searching for potential candidates raises the
question of discrimination in two ways. First, e-recruitment is subject to biases
and ‘rules of thumb’ similar to those currently used by recruiters when they face
complex choices between a range of candidates.152 Keyword searches are now
routinely being used as selection tools, and as the use of particular keywords
150
Andrejevic, M. (2003) ‘Monitored mobility in the era of mass customization,’ Space and Culture, 6: 132-150.
Lianos, M. (2001) op cit . n.109; Lianos, M. (2003) ‘Social control after Foucault,’ Surveillance & Society 1(3): 412-430.
http://www.surveillance-and-society.org/articles1(3)/AfterFoucault.pdf .
152
Tversky, A. and Kahneman, D (1974) ‘Judgement under uncertainty: heuristics and biases,’ Science 185(4157): 1124-1131
151
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varies between recruiters, it may yield different results.153 Whilst it may be
argued that eliciting the right results with particular keywords is indicative of
the professional expertise and tacit knowledge of the recruiter, it may also
reflect their own biases. Further complexity arises when one considers that CV
writing skills vary so much between candidates. The use of standard forms
goes some way to remedy this problem, as well as the use of multiple words to
search for a qualification, as well as tight policy regulation of the practice.
11.4.7.
Second, it is discriminatory in the sense that certain social, economic and
ethnic groups do not have easy access to the internet. Hence a concentration on
e-recruiting effectively excludes these groups from the labour market
altogether. Whilst many niche websites have now developed, initially its use
was directed towards white, male middle class occupations in IT and
engineering.154 There is a strong temptation for companies to standardise and
formalise e-recruitment processes which will yield ‘more of the same’ rather
than a diverse set of applicants. Indeed Marconi Capital revised its erecruitment strategy when they found that it did not attract the ethnic or social
mix of people they wanted and it has also been reported that women were more
likely to deselect themselves from online recruitment processes because of its
impersonal nature.155 The UK disability rights commission investigated 1000
websites and found that 81% failed to satisfy the most basic web accessibility
guidelines, which means that eight out of ten websites in the UK exclude 1.3
million people of working age applying for jobs online.156 Explicitly using
varied recruitment channels, advertising on diversity websites, and reflecting
diversity requirements are key steps organisations can take.
11.4.8.
Ironically, as we saw in the Introduction, a great deal of surveillance is
aimed at inclusion from the basic mechanisms of the welfare state onwards and
this has only been increased by ‘safety-first’ ideology. A key example is the
enormous development of policy to safeguard children in a comprehensive and
precautionary manner. This involves efforts to combat social exclusion and to
deal with young offenders, and, especially, interventions in the education sector.
It includes new departures such as the children’s database, or ‘information
sharing index’ for 150 local areas, that will include data on all children in
England and Wales up to the age of 18 years. The purpose is wider than child
protection, and is aimed at a more holistic purpose relating to children’s welfare
and the provision of services: the indexes will identify each child and show
whether they are receiving the relevant services. The database is to include
basic details plus unique identifying numbers and contact details for parents,
schools, health carers and other professionals who supply additional needs and
who may have important information or assessments to share. This idea, which
featured prominently in the 2003 Green Paper, Every Child Matters157 and was
legislated for in the Children Act 2004, is intended not only to bolt the door
against future tragedies, but also to fulfil a much wider care-agenda
commitment that children’s needs are being provided, thus involving the
education and health services as well.
153
Mohamed, A.A., Orife, J. and Wibowo, K. (2002) ‘The legality of key word search as a personnel selection tool,’ Employee
Relations 24(5).
154
Sharf, J. (2000) ‘As if g-loaded adverse impact isn’t bad enough, internet recruiters can be expected to be accused of ‘eloaded’ impact,’ The Industrial-Organizational Psychologist 38:156.
155
Smethurst, S. (2004) ‘The allure of online,’ People Management 10(15): 38 – 40; Czerny, A. (2004) ‘Log on turn off for
women,’ People Management 10(15): 10.
156
Smethurst (2004) op cit.
157
Chief Secretary to the Treasury (2003) Every Child Matters (Cm 5860), London: The Stationary Office.
http://www.everychildmatters.gov.uk/_files/EBE7EEAC90382663E0D5BBF24C99A7AC.pdf .
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11.5.
Democracy, Accountability and Transparency
11.5.1.
There are many questions here: what are the limits of public scrutiny?
How is the boundary between commercial databases and public and state
security to be regulated? How are private companies to be made accountable for
errors and false hits in their database systems? For example, currently there is
extremely limited access for citizens who find themselves on a ‘smart border’
watch list. While multiple agencies and authorities can access the system or
place information on the system, there is restricted capacity to remove or correct
data. Finally, there are substantial questions surrounding the accountability of
elected governments to their citizens and the ‘offshore’ nature of many of the
private contractors of contemporary surveillance systems. In effect, commercial
banks of data such as credit card transactions or mobile phone records that are
held by multinational corporations can be ‘offshore’ and beyond the direct reach
of a political jurisdiction. Recent examples of multinationals extraditing
information will raise specific challenges for public scrutiny and regulation,
particularly when a company holds the commercial data and has a contract for
surveillance functions.
11.5.2.
Appropriate policy is especially difficult to define in respect of covert
surveillance. Where this involves transnational espionage, as with the
ECHELON system, the fact that for official purposes such systems do not
‘exist’ or are held to be in a realm beyond the law, or conducted in partnership
with the agencies of other states, makes a mockery of ideas of choice and
consent. The UK has a long tradition of secrecy and a blanket assumption of
exemption on behalf of the intelligence services. For example, the Intelligence
Services Act (ISA) 1994 specifically allowed GCHQ ‘to monitor or interfere
with electromagnetic, acoustic and other emissions and any equipment
producing such emissions and to obtain and provide information derived from
or related to such emissions or equipment and from encrypted material’ for a
wide range of purposes ‘in the interests of national security […] the economic
well-being of the United Kingdom [or] in support of the prevention or detection
of serious crime’158.
11.5.3.
It is commonly believed that a warrant is required for every specific
instance of telecommunications interception (‘telephone tapping’). This is true
of ordinary police surveillance. However, the ISA actually stated in a
particularly cunningly-worded paragraph that ‘No entry on or interference with
property or with wireless communications shall be unlawful if it is authorised
by a warrant issued by the Secretary of State under this section’159, which does
not say that any of the actions mentioned is unlawful unless authorised by a
warrant. Within the meaning of the Act 'entry on or interference with property
or with wireless telegraphy' could be carried out lawfully without a warrant.
11.5.4.
Sometimes, in other nations, surveillance and particularly state
information sharing has been severely criticized by regulators and media.
Perhaps the most notable instance of this was the Canadian Government’s
Longitudinal Labour Force File, which linked a vast amount of federal and
provincial administrative data on Canadian citizens, including information
about social assistance, income tax, immigration, employment services, and
unemployment insurance. As many as 2,000 pieces of information on about 34
million Canadians were involved in this surreptitious, weakly regulated, public158
159
46
Intelligence Services Act 1994, Chapter 13, Section 3, London: HMSO.
Intelligence Services Act 1994, Chapter 13, Section 5, London: HMSO..
A Report on the Surveillance Society
service-related research programme. Following its exposure, public outcry, and
strong action from the federal Privacy Commissioner, it was dismantled in 2000
with the requirement that much more stringent privacy protection, including
encryption and 'disidentification', as well as stronger accountability and
transparency, be incorporated into any such future sharing of information.160 In
Japan in 2002, a major scandal emerged when it came to light that the Defence
Agency had been compiling secret files on those requesting information about
them, and that the Self-Defence Forces were systematically collecting data on
individuals who made information-disclosure requests, including occupation,
workplace, and possible connections with SDF workers161.
11.5.5.
Under legislation in many countries, citizens have a right to know what
information is held about them, and how it is being used, although there are
exceptions to this requirement. This right requires a ‘data controller’ to provide
to each individual information on all the data they hold on her and details of any
processing it has been subject to. This goes some way to rectifying the
asymmetry of power of the surveillance gaze, particularly where consent to use
our personal data has been implied, rather than positively granted. However,
large numbers of people do not know their rights, fail to exercise them, and
receive little help from others in doing so.
11.5.6.
Intensified dataveillance is becoming a normal feature in the modern
state, and may, in itself, be justifiable – and justified by those who promote
them – in the public interest. These activities may often be explicitly
empowered by parliament. What makes them problematic is their manipulation
of large quantities of personal data in ways that may overstep the mark
established by data protection principles and laws (parliament, once again), and
by other constraints and guidelines about how information is to be collected,
collated and communicated. We may become accustomed to being surveilled,
our activities and movements tracked and also anticipated, without noticing it,
and – especially in the public services – without the ability to opt in or opt out,
or to understand fully what happens to our data. We may well accept as
‘reasonable’ the limitations on privacy that we might otherwise reject if we
were to consider what being a citizen should mean. It is far from certain that the
political situation will, at the end of the day, allow privacy rights to stand up
strongly to the claims of government organisations made in the ‘public interest’,
even if the public interest seems clear and of greater importance. If surveillance
is meant to be ‘proportionate’, a lot depends on how that terms is interpreted,
and on who interprets it. A lot also depends on the safeguards that surround the
new, intrusive developments.
11.5.7.
However, in promoting new plans and programmes, government has also,
from time to time, recognised the question of privacy and the dangers of
surveillance. It has therefore attempted to bring to the surface the important
question of public trust in the information processes of ‘information age
government’, including public-service provision both online and in other ways.
Sometimes the ‘down-side’ has not been considered in anything like the depth
that the presumed benefits have been. But privacy issues have been important in
the debates about trust, although not so prominent or so influential as was hoped
for by those who have been worried about the surveillance potential of the new,
160
Todd, D. (2001) Politicizing Privacy: ‘Focusing Events’ and the Dynamics of Conflict. Unpublished Master’s Thesis,
University of Victoria, BC, Canada, 58-86; see also: HRDC Canada (2000) ‘HRDC dismantles longitudinal labour force file
databank’, 29 May, http://www.hrsdc.gc.ca/en/cs/comm/news/2000/000529_e.shtml .
161
Abe, K. (2004) ‘Everyday policing in Japan: surveillance, media, government and public opinion,’ International Sociology,
19: 215-231.
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more integrated and extensive, use of databases and like. When the Performance
and Innovation Unit produced its report in 2002 on privacy and data-sharing,162
it went further towards trying to provide solutions that would both enable
personal data to be used and shared, and that would also enhance the protection
of privacy. However, putting its recommendations into practice has, for the
most part, fallen behind, overtaken by events and new initiatives which have
made the prospects of good privacy protection in the public services look more
remote unless countervailing safeguards can be built into these initiatives, or
applied to them afterwards.
162
Cabinet Office Performance and Innovation Unit (PIU) (2002) Privacy and Data-Sharing: The Way Forward for Public
Services. London: Cabinet Office.
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Part C/1:
A Week of Life in the
Surveillance Society, 2006
12. Introduction
12.1. It is London in 2006. The Jones family are returning from their holiday in
Florida. Dad, Gareth is a manager in a call centre, and mum Yasmin is a social
worker. Yasmin is originally from Pakistan and holds dual nationality. Her mum,
Geeta, who holds a Pakistani passport is with them too, as are their three children, 18
year old Ben, 14 year old Sara and 10 year old Toby.
12.2. The Jones family are citizens in the surveillance society. Throughout the week
following their return, sometimes unwittingly, and sometimes with complete
awareness, their lives interact with and are shaped by surveillance systems. In the
following pages we show how their everyday activities are now embedded within
surveillance systems, and how surveillance affects their actions and relationships.
13. At the Airport
13.1. Although it is the end of the family holiday and they are heading home Gareth
Jones is feeling pleased with himself. This was his treat. As regional manager for
‘Sentasi’ Britain’s fasting growing call centre network, he had landed a sizable
performance bonus for his part in setting up new offices in Hyderabad163. It was his
working knowledge of Urdu that made the difference, acquired from his twenty-two
year marriage to Yasmin. The bonus had afforded the holiday of a lifetime: three
weeks in Florida, Walt Disney World, the Keys, and whale watching. With Ben now
off to university next year (provided he achieved a better grade in one of his A levels
which he was retaking part time at school), this might have been the last complete
family holiday. And Yasmin had really needed the break. Once Toby, their last
child, had started school, she had trained as a social worker, passed with flying
colours, and was immediately offered a job in a multi-agency youth offending team.
It had been four years since their last proper holiday. And he was really pleased that
Yasmin’s mother, Geeta had joined them; it was a small ‘thank you’ for the financial
help she had given them over recent years. He was also pleased because Geeta and
Sara had that special bond, as grandmother and granddaughter often had, which
helped to calm her somewhat volatile teenage temper. And he was finding it
increasingly difficult to relate to her. He knew she had been skipping school and he
blamed the crowd she was mixing with; she called them ‘Goths’. He called it
morbid: all dressed in black, hair dyed black, studded boots, and piercings all over
the place. He had made her remove the one in her tongue but had eventually given
in to the multiple ear studs. Teenagers!
13.2. As he waits in line he hopes that they would not face the same problems in
boarding the plane as they had when they left from Gatwick. As they had passed
through security the whole family had been taken to one side, their hand luggage not
163
All names of private individuals and companies in the text are fictional. Real world analogues are footnoted.
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only x-rayed, but also thoroughly hand searched, and they had all been questioned at
length about their recent international travel. It had taken over half an hour before
they had been allowed to proceed. They had been told they were singled out at
random, as part of the additional security measures now in place. But he suspected it
had been because his wife and mother-in-law held Pakistani passports.164
13.3. He is wondering whether the same thing will happen on their way back. As he
places his hand luggage on the conveyor belt along with his keys, loose change,
jacket and shoes in the basket, walks though the body scanner he is relieved that he
doesn’t trigger an alarm. But in the adjacent aisle where the women had been
directed, he watches with some embarrassment as his daughter removes her boots,
neck choker, big black belt, and studded jacket and, even in this state of relative
undress, still triggers the buzzer as passed through the scanner. She is made to pass
through again and, as the alarm sounds once more, she is waved aside to a small
curtained cubicle where she is subjected to a thorough body search by a female
security guard before being allowed to proceed. Once through security they are
forced to wait in line again to be photographed and fingerprinted, as they had been
when they had entered the US three weeks before165.
13.4. The rest of the procedures are uneventful, immigration goes without a hitch, with
Yasmin and Geeta only taking a few minutes longer to clear the non-EU/UK
passport holders desk, and baggage reclaim is efficient.166 But Ben and Toby have
stacked a trolley high with their cases, and as Ben turns a corner, the cases topple
off, crashing into Geeta, who is knocked to the ground. As Yasmin and Ben check
to see if she was alright, two members of airport staff appear almost immediately167
and most helpfully organise for an electric passenger cart to come and take them and
their luggage to their courtesy bus which will drop them at the car park.
164
He is partly right about this. However the actual reason for the stop is that they had been subject to ‘passenger profiling’. In
this case the fact Mr Jones booked his holiday at the last minute, has a recent history of travelling to Pakistan, that two members
of the party have Pakistani passports and that they requested not to sit together (the children all wanted window seats) flagged
them as high risk passengers needing addional security checks. The profiling was part of a trial for Project Semaphore, which
was introduced as part of the UK Government’s e-borders programme, at selected airports from 2004. Initially it targeted six
million passengers a year on a number of international air routes to and from the UK. It uses on-line technology and advance
passenger information provided by airlines, to custom police and immigration officials before arrival to screen and record
individuals as the enter and exit the UK, providing a comprehensive passenger movement audit trail which can be checked
against other databases. See: Home Office (2004) ‘Cutting-edge technology to secure UK borders,’ 28 September,
http://press.homeoffice.gov.uk/press-releases/Cutting-Edge_Technology_To_Secur?version=1 . In January 2006 it was
announced that the this would be extended to all cover the 40 million domestic journey made by plane or ferry: Travis, A.
(2006) ‘Security services and police to get UK air passenger details in advance,’ The Guardian 24 January,
http://www.guardian.co.uk/airlines/story/0,,1693586,00.html .
165
In the wake of September 11 2001, the US introduced biometric identification for foreign visitors to the USA. Since 2004
under the USVISIT programme this has meant that on entry and exit, a U.S. Customs and Border Protection Officer reviews
your travel documents, such as a visa and passport, questions you about your stay in the U.S and then uses an inkless, digital
fingerscanner to capture the fingerprints of left and right index fingers. The officer also takes a digital photograph of the
passengers face. The biometric identifiers are used to confirm the passenger’s identity so that their details can be checked against
a variety of data bases including Arrival Departure Information System (ADIS), which stores traveller arrival and departure
information; Advance Passenger Information System (APIS), which contains arrival and departure manifest information;
Computer Linked Application Information Management System 3 (CLAIMS 3), which holds information on foreign nationals
who request benefits; Interagency Border Inspection System (IBIS), which maintains "lookout" data. IBIS in turn interfaces with
the Interpol and National Crime Information Center (NCIC) databases; Automated Biometric Identification System (IDENT),
which stores biometric data of foreign visitors; Student Exchange Visitor Information System (SEVIS), a system containing
information on foreign students in the United States; Consular Consolidated Database (CCD), which includes information about
whether an individual holds a valid visa or has previously applied for a visa. See EPIC (2006) ‘United States Visitor and
Immigrant Status Indicator Technology (US-VISIT),’ http://www.epic.org/privacy/us-visit/ . See also: Deparment of Homeland
Security (nd.) ‘US-VISIT Multilingual Videos and Brochures,’
http://www.dhs.gov/dhspublic/interapp/editorial/editorial_0435.xml .
166
Aided in part by the bar code tagging of their suitcases that helps the airline keep an online database of all baggage
movements and destinations.
167
They are alerted by radio from the Central CCTV monitoring system, which picked the incident up on their screens.
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14. Shopping
14.1. As Yasmin drives out of the airport, she switches on the Sat Nav system, which
will guide them home by the most direct route, but also alert them to the presence of
speed and red light cameras on the way. Yasmin knows she doesn’t need to be
reminded of the speed limit but Gareth wouldn’t be without sat nav. He already has
six points on his licence for speeding offences and a further six would see him
banned for a year, something he can ill afford in his line of work which requires so
much driving.168
14.2. On the way back they agree to stop off at a massive out-of-town shopping mall.
Gareth and Yasmin decide to go to the nearby supermarket, NSC, to do a quick shop
for dinner that night, while the kids go to ‘Denim Warehouse’ which has a sale.
Yasmin will get the family’s weekly groceries on Monday evening after work. At
‘Denim Warehouse’, Ben buys some new jeans, impressed with the free baseball cap
that came with them, which he puts on Toby’s head as they leave the store. He is
less impressed when, as they are sitting on a bench with Sarah whose met some other
‘Goth’ kids, two security guards approach them, order Toby to remove his cap and
ask them all to move on. When Ben starts to protest that they have no right, he is
informed curtly that if he would like to come to the manager’s office they can give
him a copy of the shopping centre’s policy.169 For once he takes his sister’s advice
not to argue, and they walk back to the car.
14.3. Whilst the children and Geeta are all in the car with the luggage and presents, the
parents pick up milk, bread, salad, pizzas and a bottle of wine, and proceed to the
check out. They would all eat together that evening, and then Yasmin would drop
Geeta back to her flat. As he opens his wallet, Gareth realises that he hasn’t got any
British money to pay for the shopping – only a few US dollars that were left from his
holiday. In any case they usually pay with their NSC credit cards because the more
he uses it the more money off vouchers they gets sent, and the greater their credit
limit. They like the money off vouchers because they all related to things they’d
bought at NSC in the past and sometimes they use them to try products they
wouldn’t usually buy but at a cheaper price.170 Gareth places the card in the reader,
and enters his PIN. The green and black screen of the reader flashes, telling the
checkout operator to seek further authorisation for the card. As he gazes at the
screen in disbelief, Gareth feels his mobile vibrate in his jacket pocket. It is the NSC
bank fraud team! A formal, female voice informs him that they are investigating an
unusual pattern of activity on his card.171 Is he aware that it had been used recently
in Florida, and is now being used in London? ‘Of course’ he answers. As he was
explaining to the bank about the holiday, Yasmin hurriedly produces their other joint
168
He had fitted the car with a top of the range Snooper S4 Evolution Camera Detector, which according to its sales pitch uses
the latest GPS technology. It will locate all types of fixed Speed Cameras such as Gatsos, Truvelo, SPECS, mobile, DS2,
Watchman and SpeedCurb. It has voice alerts and will even tell you the Speed Limit at every fixed camera it locates. With over
two million people prosecuted as a result of automatic speed cameras and red light enforcement in car camera sensors are
becoming increasingly popular for those who have to drive as part of their work. Details of these and similar products can be
found at: SpeedCameraDetectors.Com (2006) ‘Snooper Speed Camera Detectors,’ http://www.speedcamerasuk.com/snoopercamera-detector.htm .
169
The security guards were alerted by the in-store CCTV system and are under strict instructions to enforce the centre’s guest
conduct code. This states (among other things) that it does not permit: ‘Any intimidation of our Guests by groups or individuals.
All groups of more than five without the intention to shop will be asked to leave the centre’ or ‘Unsociable behaviour that is
detrimental to the centre environment’ and the ‘wearing of any item of clothing which restricts the view of one's head/face (e.g.:
hoods or baseball caps) with the exception of religious headwear’ see, e.g.: Bluewater Shopping Centre’s Guest Conduct Policy,
http://www.bluewater.co.uk/home/guest-services/facilities/guest-conduct .
170
The origins of consumer data are discussed in the ‘Key Developments’ section of the Consumer Surveillance Expert Report.
171
Consumer data fraud is discussed in the ‘Critical commentary and future directions’ section of the Consumer Surveillance
Expert Report.
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credit card to pay for the goods, as well as her Reward Card.172 173 But, entering her
PIN, the card is refused. Apparently they have spent up to her credit limit in Florida
– strange that they hadn’t realised. By now Gareth has come off the phone, and is
able to pay for the shopping on his newly re-authorised credit card. They return to
the car just as Geeta had succeeded in placating three bickering, jet-lagged kids, and
go home.
15. At home
15.1. At their house in Finchley, North London, Ben and Toby unload the luggage, and
Yasmin opens the front door. Their neighbours, whom they had asked to collect
their post for them, had apparently been away for a few days and Yasmin has to
practically shoulder-charge their ageing UPVC door just so she can squeeze through
the enormous pile of letters and papers on the other side. ‘What makes us so popular
all of a sudden?’ she thinks. With the family clamouring to get in, she gathers up the
mail and dumps it all on the kitchen table. After unpacking and with a nice cup of tea
in hand, Yasmin starts to sort through the letters. She pulls out the usual credit card
bills, bank statements, council-tax notices and local free papers. She also finds two
letters for Ben, and three addressed to her and Gareth which look like they are from
Toby and Sara’s respective schools. The rest are unaddressed items,174 insurance
and double-glazing offers, cosmetic samples, sportswear catalogues and even one,
which catches her eye, about cheap flights. ‘A bit late’, and she has to laugh as she
finds another about pet products addressed to their pet Labrador, ‘Dan Jones’. They
have recently taken out pet insurance for him and obviously forgot to tick the
mailing list ‘opt out’ box.
15.2. She opens the three school letters. The first is a letter from Sara’s school inviting
them to a parents meeting to discuss the proposal to introduce random drug testing
for pupils. As the letter explains, during recent trials in Kent, one school has seen its
exam scores increase dramatically, and out of 600 tests carried out on the 11–18 year
olds only one tested positive, which suggests the scheme was having the desired
effect. As this was a controversial move the school wants to consult as widely as
possible before making a decision.175 The second letter, also from Sara’s school,
details the new access card-based systems that will be implemented during the first
week of the new term. The system will also be used to monitor attendance and, the
letter went on, in view of Sara’s poor record last year, they will be using the system
to provide parents with a monthly statement of attendance.176 If there are any
unauthorised absences they will be invited to the school to discuss the matter.
Yasmin’s heart sinks as she realises that they will have to have words with Sara
about this. But her mood lightens reading the letter from Toby’s primary school: it
appears that she will now be able to see exactly what Toby eats for lunch each day.
The school is installing a cashless payment card to pay for school dinners. As part of
this scheme, parents will be able to access their child’s purchasing record over the
172
Consumer loyalty schemes, are discussed in the ‘Critical commentary and future directions’ section of the Consumer
Surveillance Expert Report.
173
The Reward Card enables her to collect points at a number of outlets, including NSC supermarkets, Johnson Holidays, and
Wilsons, a national chain of travel agents. In fact, by booking the holiday with Johnson Holidays, she has collected enough
Reward Points to afford a city break she has seen advertised in the window of Wilsons. She wants to surprise Gareth on their
wedding anniversary later in the year. In popular loyalty schemes, such as the Nectar card, loyalty points are awarded for every
£1 spent in participating retail outlets. For example, one Nectar point is worth 0.005p at Sainburys or Argos, and can also be
redeemed in a number of other outlets. For details, see: http://www.consumerdeals.co.uk/nectar.html .
174
Royal Mail’s ‘Door to door’ service enables advertisers to get blanket coverage by postal code rather than individual
addresses, http://www.springglobalmail.com/royalmail/en/d2d/d2d.htm .
175
Blair, A, (2006) ‘Teenagers to face random drug testing at all schools,’ Times Online, 31 May,
http://www.timesonline.co.uk/article/0,,2-2204492,00.html .
176
. The system will also allow for ‘full trial reports of pupil, staff and visitor movement’ and enable ‘system users to see who
has entered what areas and when,’ g2is (nd.) ‘Access Controls Solutions for Schools’ http://www.g2is.co.uk/pdfs/G235G2_Access_Solutions_Schools.pdf .
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Internet. Yasmin has always suspected that Toby buys crisps rather than fruit with
his lunch money; now she will be able to check!177
15.3. Ben skulks off to his bedroom to open his letters. The first informs him that his
Criminal Records check is clear and that he has a place on a VSO178 scheme to spend
six months working with deprived children in Africa on a sustainable development
project.179 He is overjoyed, but the second letter brings him down to earth a bit. It
asks him if he wants to take part in the UK national junior badminton team selection
competition. Ben will have to think about this. He has played for his school at
county level but he knows that if he plays in any national competition he is more
likely to be have to take to a random drug test. Over the past few months he has
been smoking a bit of weed at weekends, and he is worried that this might show up
on the test.180
15.4. After dinner Yasmin drives Geeta the short journey to her flat. When Geeta’s
husband, Deepak, had passed away, Geeta would have preferred to have moved in
with her daughter’s family but there just wasn’t the space. Instead the family had
managed to get a sheltered flat for Geeta nearby. It is getting dark as they pull into
the car park but Yasmin barely notices as the flood-lighting in the car park makes it
feel like day anyway. Nor does she notice the CCTV cameras covering the entrance
to the block. These enable Terry, the concierge, to keep an eye on the comings and
goings, from the comfort of his office. As Geeta’s electronic key fob opens the
automatic door into the lobby area, Terry is already there to greet them and help with
their baggage.181
15.5. While Geeta starts to unpack her things, Yasmin checks on everything in the flat.
She turns on the water, electricity and gas and the movement sensor in the corner.
Since Geeta had slipped and knocked herself out a few months ago, the family had
asked for a movement sensor to be installed for their peace of mind.182 Once Geeta
has settled, Yasmin returns for an early night as she has to go straight back to work
the next day.
16. In the city
16.1. Toby doesn’t start back at school for another day and Gareth has taken an extra
day off. It is a day full of chores; the car needs washing, they have to buy Toby some
new school shoes and a mobile phone, and they have also planned to visit his
mother, take her for lunch and shopping. Gareth’s mother lives on the other side of
177
‘Control of children’s eating behaviour outside of the home is becoming an important issue’ and via the Web, ‘g2 cashless
solutions offer parents the ability to load value to the child’s card, monitor and manage daily spend allowances, view and even
restrict purchases of specific food types bought,’ g2is (nd.) ‘Cashless Solutions for Schools’
http://www.g2is.co.uk/pdfs/G231G2_Cashless_Solutions_Schools.pdf
178
Voluntary Service Overseas.
179
Criminal Records Checks are now mandatory for persons seeking employment in jobs involved with the care of the young or
vulnerable. See Crime and Justice Expert Report
180
As part of the UK Sports ‘National Anti-doping Policy’ all national sports associations must implement random drugs testing
procedures. Testing potentially applies to all participants, taking part in any competition organised or affiliated to the national
associations. In 2005/6 some 7,968 tests were conducted across 50 sports, of these 161 related to badminton, UK Sport (2006)
‘Drug free sport’, http://www.uksport.gov.uk/pages/drug_free_sport/ .
181
Terry is employed by a private security company, and his job is to watch the CCTV monitors, listen on his audio system to
any conversations and events in the block’s public areas, and keep an eye on people coming and going from the block. If he
hasn’t seen someone arrive or leave for two days, he is instructed to check on individuals and report anything suspicious or of
concern to the police, health or social services. See: McGrail, B. (1999) Highly Thought of? New Electronic Technologies and
the Tower Block, ESRC Virtual Society? Programme Research Report, Milton Keynes: The Open University.
182
In summer 2006, Cheshire County Council unveiled a ‘telecare scheme’, which funds the installation of monitoring
equipment in the homes of the elderly to help them retain their independence. Stairlifts, rails, panic buttons, sink and bath flood
detectors and movement sensors, which detect whether a person has got out of bed or fallen over are all part of the package. The
movement sensor can detect the form of a body within an accuracy range of 12 pixels, see: Cheshire CC (2006) ‘Alarms for
elderly and disabled’, http://www.cheshire.gov.uk/socialcareandhealth/adults/alarms_for_elderly_and_disabled.htm .
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London, and Gareth reluctantly decides it will be quicker to drive through the centre
of the city.
16.2. This means going through the Congestion Charging Zone, and Gareth asks Toby
to remind him to log on to the Transport for London website when they get home so
he can pay the congestion charge with his credit card.183 Their number plate, ‘GGJ
456’ is read by the ANPR system, however some mud on the registration plate
means a ‘5’ is recognized as a ‘6’ and their details are read entered incorrectly into
the database184. Leaving the CCZ, Gareth turns into a service station to get the car
its much needed wash. On the way out of the garage, at the entry to the one-way
system, Gareth is unaware that another, police-operated, ANPR camera has read his
number plate – this time correctly. Had he known, he would have been concerned to
note that his vehicle was positively flagged to a mobile team of intercept officers
positioned a few hundred yards down the road. This is because he has a criminal
record for drinking and driving. But, as the conviction is over 4 years old years old,
it is 11 o’clock in the morning, and the car is being driven in an acceptable manner,
the team decide not to stop the vehicle185.
16.3. While his mother does her shopping, Gareth and Toby go to ‘Mobiles4You’ to
buy a new phone. Toby has been on about getting a phone for ages, most of his
school friends have already got one, and he thinks it would be decidedly cool if he
turns up at school with a brand new phone with loads of good games. Actually,
Gareth is pleased that Toby is so anxious for a phone because, now that he is
travelling to and from school by himself, Yasmin wants to be able to keep in contact.
What they haven’t told Toby was that they also plan to register the phone with
‘Trace a Mobile.com’ which will enable them to keep track of their son’s
whereabouts without him knowing.186
17. Crime and Society
17.1. Yasmin is relieved that on her first day back at work she has managed deal with
all her emails and the urgent post by lunchtime and can use the afternoon to prepare
for the Youth Inclusion Project (YIP) meeting later in the week. There is only one
really urgent matter to deal with: one of her clients, Wilson Green, has broken the
conditions of his curfew. Some months earlier Wilson had been designated as a
Persistent and Prolific Offender by her Youth Offending Team and, as a result of
some good intelligence and a police surveillance operation, had been caught redhanded breaking into a local chemist’s shop187. He could have received a custodial
sentence but was offered the chance to be enrolled on the Intensive Surveillance and
183
The Congestion charge system utilises an automatic licence plate recognition system, which logs the number plates of all cars
that enter and exit the charging zone on a data base and all cars that exit it according to the Transport for London (TfL) web site:
‘After the vehicle registration number is read, it is compared with the database of vehicles which have paid their congestion
charge for that day. … Following a final check at midnight (the following charging day), the computer will keep the registration
numbers of vehicles that should have paid the charge but have not done so (including charges paid for the previous charging
day). We will then manually check each recorded image before issuing a penalty charge notice.’ TfL (nd.) ‘Congestion Charging:
imaging and cameras,’ http://www.cclondon.com/imagingandcameras.shtml .
184
The implications of this for Gareth are negligible: technically he has not been registered on the system so he wouldn’t have to
pay the charge, but as he doesn’t know this so he will pay the charge anyway. The consequence for the driver of the car GGJ
466, who is currently driving her vehicle on a touring holiday of France, will depend on whether the manual check carried out
before a penalty notice is issued picks up on the fact that they are different vehicles – in fact they look very similar.
185
This camera is operating as part of the national roll out of the ACPO ANPR Strategy. See Crime and Justice Expert Report.
186
‘Location Services are designed to locate the phone of another person. For the service to work, the phone has to be switched
on and within network coverage. Location services aimed at children are intended to complement, not be a substitute for, normal
parental supervision. They give information about the location of a child's phone and, in conjunction with other types of
communication, such as phoning or testing, can help parents keep in touch with their children,’ Trace a Mobile.com (2006)
‘Mobile phone tracking guide,’ http://www.traceamobile.co.uk/mobiletrackingguide.php .
187
Dunnighan, C. and Norris, C. (1999) ‘The detective, the snout, and the Audit Commission: the real costs in using informants’,
The Howard Journal, 38(1): 67-86
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Supervision Programme instead.188 However, they have now been informed by
Track-and-Trace, the private company responsible for running the electronic
monitoring scheme, that in the last two weeks he has broken his curfew three times.
As a result Yasmin will have to attend a case conference called for the next morning
to consider whether they have to send him back to court and face the possibility of
prison. ‘How depressing’ she thinks.
17.2. But being assigned to the YIP is more positive. Whereas most social work is
about picking up the pieces after things have gone wrong, the YIP programme tries
to identify those young people most at risk of becoming offenders, and provide them
with positive support before they get into trouble. On Friday they will be having a
multi-agency review meeting to determine the final list of those who will be
included in the programme. The programme is focused on the place Yasmin thinks
is the worst housing estate in the borough: the Dobcroft Estate. This is a sprawling
1960’s high-rise estate with over 2000 flats and a maze of concrete walkways. She
knows that most of the kids on the estate would benefit from the support they could
provide, but they have to be selective in targeting only those most at risk of future
offending. The interventions include: getting them involved in local sports
activities; attendance at drug-education and anger management classes; getting their
mums and dads to attend parenting classes; and – the one she liked best – getting
them to make short films about the problems faced by young people in the area. She
is always surprised by how much they seem to gain from the experience.189
17.3. Before Yasmin had gone on holiday she had asked all the local agencies involved
with children to fill in a risk-assessment form ‘for all the young people aged 13-17,
resident on the Dobcroft estate, whom you are aware of as being at risk of offending
through your work with them or their family’. She had already received replies from
the local schools, the police, social services, Connexions, the Local Education
Authority, and the Youth Justice Board. In order to ensure that no one slipa through
the net, she had also contacted the local tenants’ association, the outreach drug team
and the Neighbourhood Watch coordinator to ask them to nominate any children
who had come to their attention. Each agency was asked to rate the child’s risk of
offending on a scale of 1-5, and provide key information which would be used to
determine the overall risk score.190
17.4. She now has the task of collating all this information so that they can target the
intervention at those most at risk. She decides that the easiest way to start is to sort
the reports by name – and see if any child has been referred by more than one
agency. There were many multiple referrals, but one name stands out: 13 year-old
Darren White. He has been identified by six agencies, he has been in local authority
care but is now back living with his single-mother, his elder brother has a string of
convictions even though he is only 17, he is a regular truant and is hanging out with
188
The ISSP can insist on routine drug testing to ensure offenders are not engaging in substance misuse and subject offenders to a
variety of additional surveillance measures. At least two checks have to be made each day, with the potential of increasing the
surveillance to continuous 24-hour monitoring. The checks include: face-to-face monitoring by a probation office at specified
times during the week and to accompany them to scheduled activities and appointments; electronic monitoring to ensure that
curfew conditions are met; voice-print verification over the telephone to ensure that the person is where they say they are; and
overt police surveillance ‘of the movements of these young offenders at key times to reinforce the programme, as well as share
information with the ISSP staff in the youth offending team, ’Youth Justice Board (nd.) ‘ISSP: Surveillance’ http://www.youthjustice-board.gov.uk/YouthJusticeBoard/Sentencing/IntensiveSupervisionAndSurveillanceProgramme/Surveillance.htm .
189
See ‘Key Developments’ section of the Public Services Expert Report.
190
The police form, for instance asks if the child has been arrested, convicted or had other contact with the police in the last six
months; the school form asked if child the had been excluded from school over the last 12 months and whether they were
truanting regularly. The form for the neighbourhood watch coordinator to fill in, asks whether the child has been causing a
nuisance in the area, was involved in a negative peer-group, whether they were known to have been offending and whether their
siblings or other family members had been involved in offending, Youth Justice Board Youth Inclusion Programme (nd.) ‘YIP
Core Group Referrals – Guidance For Partners’ http://www.youth-justice-board.gov.uk/NR/rdonlyres/0233E9E7-8E58-45E0ACF8-E3190B8EAD19/0/ID50guidancedocumentforpartners.doc .
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a bad crowd, and is involved with drugs. And every referral has graded him as being
a ‘4’ or a ‘5’ indicating a high risk of future offending.
17.5. By the end of the day she has identified 73 children who, on her preliminary
assessment, will need to be discussed at Friday’s multi-agency meeting. Tomorrow
she will repeat the process for the Junior Youth Inclusion Programme aimed at
identifying even younger children at risk: the 8-13 year old group.
17.6. On the way home, scanning a newspaper on the bus, her eye is caught by the
headline ‘”We can clamp down on antisocial children before birth”, says Blair’. As
she reads the article, she wonders if the Prime Minister’s plan to intervene with
‘problem families’ before their children were born to stop their children growing up
bad, were going too far. But then again, she reflects, maybe it is just the logical
extension of what she is doing already, another use of data to predict and control
behaviour.191
18. The Call Centre
18.1. On Tuesday morning Gareth returns to work. He works as a client manager at
the Sentasi Group, which owns several multi-client call centres.192 As he swipes into
the building using his RFID-implanted card, the time and attendance system
simultaneously logs his hours. His photograph appears on a screen in the security
office, where staff can locate his whereabouts as he uses the card to enter or exit
different parts of the building.193 His job involves managing two large projects. One
involves his team cold-calling households to try and get them to switch their
telephone accounts to his client, Novacom. The other is for an insurance company,
which is targeting a ‘niche product’ called ‘Platinum’ aimed at older, safer drivers.194
Customers also dial in to change their details, make claims, and cancel their
policies.195 He has to report performance results to his clients on a daily basis, and
every week has to submit a written report to explain any fluctuations in the call
statistics. His job has its perks. Apart from getting a monthly bonus based on the
performance of the projects, he recently had the opportunity to work more closely
with Novacom in setting up a dedicated call centre in Hyderabad. Getting to know
his opposite numbers in the client company makes the job of reporting the statistics
much easier.196
18.2. In order to get up to speed after his holiday, Gareth has arranged early meetings
with the team leaders from both projects. The Novacom project is running well. He
monitors how long each operator spent on each call and how many of their calls
result in sales, and the monthly report he receives shows that even though he had
been on holiday, performance hadn’t dropped. Apart from the new recruits, who are
still learning the job, most of his team are exceeding their sales targets. Gareth
attributes this to good supervision and job design, and wonders whether he should
191
Woolf, M., ‘'Failures' targeted at birth’, The Independent, 16 July 2006,
http://news.independent.co.uk/uk/politics/article1180225.ece .
192
A ‘multiclient’ call centre is one whose core business is to provide contact services to different companies at the same time.
193
See: ‘Critical commentary’ section of the Workplace Surveillance Expert Report.
194
See: ‘Key Developments’, Consumer Surveillance Expert Report.
195
Callers are placed in queues which have different wait times, and are routed to employees with varying skill levels. ‘Gold’ is
answered the fastest and by the most skilled agents including team leaders. These customers have been insured with Platinum for
over five years, and have fully comprehensive cover. ‘Silver’ has been insured fully comprehensive from 0 -5 years, and
‘Bronze’ handles all callers who have purchased third party insurance.
196
In this situation, the client sees Gareth as being responsible for the performance of the project and so it is he who is under
surveillance. As the person who delivers performance reports to the client (by email) Gareth is answerable for the statistics.
Developing a more personal relationship with the client will help humanise this distant, technologically mediated situation.
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increase the performance targets197. He will also recommend the team leader for a
bonus this month.
18.3. Having been elated by the news from Novacom, the news from Platinum brings
Gareth back down to earth. Because there had been a recent lull in calls, some
employees have been surfing the Internet to pass the time. The company allows
some private surfing, so long as the employees log out of the telephone system when
they do so. This is because the telephone system records their activities every
minute of the day. Every week, the computer summarises the project’s performance
using the statistics generated from the computerised telephone system. It is these
statistics that Gareth has to communicate to the client.198 Long periods of inactivity
are not good news as far as the client is concerned. The IT department also
stringently polices the sites that employees visited.199 IT has reported that one
member of staff is spending time on a private blogging site during working hours.
Rather than block the site, IT has read the employee’s posts and informed a team
leader of their content in Gareth’s absence. After the meeting, Gareth settles down
to work through his outstanding emails and refresh his knowledge of the company’s
disciplinary guidelines.
19. Health
19.1. On Wednesday morning, Geeta is fed up as she is not allowed to have breakfast;
not even have a slice of toast or a cup of coffee. Her calendar on the kitchen door
reminds her in thick red pen, that today at 4.30 pm is her ‘Well Woman Check’.
Last month she’d received a letter from her GP asking her to attend the local ‘Well
Woman Clinic’, aimed at patients over 50. The letter, written in English and
translated into Urdu, explained how she, as an older woman, was at risk of heart
disease,200 stroke, diabetes, kidney and liver malfunction, and cervical and breast
cancer. It emphasised how early diagnosis of any of these diseases increased
survival rates, and that her health and well-being were important. Reading it made
Geeta feel like her life was on the line, and she wondered why some of these tests
were necessary.201 The letter advised her not to eat or drink anything, except water,
in the 12 hours preceding her check, as they would be taking blood and urine
samples. They would also be checking her height, weight and eyesight. The letter
also explained that the nurse would talk to Geeta about her lifestyle and diet, and
could make recommendations. It also said something about attending hospital for
breast screening if necessary.
19.2. Geeta feels daunted as she remembers how she had looked after her own parents
with very little medical help. But she is pleased that the NHS knows so much about
her and is looking after her so well.202 Both her parents had died of heart attacks,
and it still worries her that she might have the same problems. She hasn’t had much
197
In doing this he also allows experienced team members to develop their own sales pitch although he makes a point of listening
to a random selection of calls to ensure they are not straying from company guidelines. See: ‘Key Developments’, Workplace
Surveillance Expert Report.
198
In call centres, employees work at a desktop PC, attached to which is a small console called a ‘turret’. The turret has a
number of buttons that employees must press, which relate to each aspect of the job. The buttons relate to different ‘Activity
Codes’ e.g.: ‘Not ready for a call’ (Not Ready); ‘ready for a call’ (Ready); ‘taking a call’ (Call); ‘wrap up from a call’ (Wrap);
‘Auxiliary codes’ (Aux Works) – the latter pertain to activities such as filing, answering emails, and breaks. The client and the
call centre management will agree time limits for each activity code and staff times are monitored closely and scored. The scores
are averaged out over time and used in appraisal and performance review.
199
See: ‘Introduction’, Workplace Surveillance Expert Report.
200
British Asians (with origins in Pakistan, India, Bangladesh or Sri Lanka) are at higher risk of coronary heart disease see
Patient UK (nd.) ‘Preventing Cardiovascular Disease,’ http://www.patient.co.uk/showdoc/23068754/
201
See: ‘Key Developments’, Medical Surveillance Expert Report.
202
See: ‘Key Developments’, Public Services Expert Report.
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contact with the British health system, having had both of her children at home in
Pakistan, and having enjoyed good health for most of her life.
19.3. She had asked Yasmin to come with her, but she can’t because of work
commitments. However Sara had offered to accompany her, as she could just make
it after school. Geeta is really pleased that her teenage granddaughter would make
the time. While they are on the bus, Geeta keeps quiet about her worries, and Sara
distracts her with a rant on the workings of CCTV, prompted by the sign on the bus
saying that ‘in the interests of safety and security of their passengers this bus is
equipped with CCTV monitoring’ and her recent experience of having been barred
from their local shopping centre because she had the audacity to question whether
the security guards had the right to make her and her mates leave “just for sitting on
a bench”. Geeta thinks there might be more to this story but agrees with a
conspiratorial smile, and much to Sara’s relief, not to tell Yasmin.203
20. School and after…
20.1. On Wednesday at Ben’s school the corridors are packed with lost students
looking for classrooms. For once, he has left himself enough time to find where he
has to go. His class isn’t until midday, so he heads for the cafeteria to see if he can
see anybody he knows. But there isn’t yet and he as there is a computer free in the
Internet café he grabs the place, mostly so he can people-watch from a safe distance.
He doesn’t need a school log-in to get onto ‘Net, so it is the perfect opportunity to
check his hotmail account before class. His inbox contains 120 messages, hardly any
of them from names he recognises. Apparently, various provocatively-named
females want to show him a good time, he can get ‘herbal v1agra’ (sic) and other
dubious drugs for conditions he can never imagine having, he can even have cheap
breast enhancement or make millions if he just helps out the ex-wife of some
Nigerian ex-cabinet minister. He paused for a second, and then deleted them all.
Another email is supposedly from his bank asking him to confirm his online log-in
details. Ben is not that gullible and knows all about these kind of scams, so he
deletes that too. He does wonder why he keeps getting all this junk e-mail though.204
20.2. Finally, he notices something from his friend Aaron, with whom he’d done his Alevels the year before. Like Ben, Aaron is involved in anti-capitalist activism. They
have been on Critical Mass and Stop the War events together since they were 16,
although Ben’s parents don’t know about this. The message says that there will be an
anti-capitalist demonstration in London the following Saturday, that it is being
organised in secret, and that he has to text a mobile phone number to get the details
of where to meet. Ben replies straight away saying that he will see Aaron at the
local tube station on Saturday morning. He is hoping he can get some money
together between now and then. That afternoon he has to go to the benefits office to
see if he can claim Jobseekers Allowance, and is even considering his father’s offer
of a part-time job in the call-centre albeit reluctantly.
20.3. The news from the Benefits office is okay, but Ben was annoyed because they
won’t give him a clear answer. They have told him that because he is studying one
A-level part-time, he can claim Jobseekers Allowance, in theory. However, before
they can make a decision he has to fill in a questionnaire to give to the adjudication
officer, who will decide, over an unspecified period of time, whether or not Ben
203
On exclusion policies of shopping malls, see: McCahill, M. (2002) The Surveillance Web, Cullompton, Devon: Willan.
See: ‘Critical commentary and future directions’, Consumer Surveillance Expert Report; Wall, D (2001) Mapping out
cybercrimes in a cyberspatial surveillant assemblage,’. In Ball and Webster (2003) op cit. n.149.
204
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really is a ‘job seeker’205. He reckons that his mum might know what the situation
is, but he suspects that she would just say that it would take ages. She often comes
in from work complaining about how impossible it was to get the right information
from people working in other areas of social services.206
20.4. In the meantime, Ben needs to find some money for the weekend, so he goes
back home and calls his bank for a balance and, if need be, arrange a small overdraft.
Ben is pleased that he decided to use his parents’ phone to call his bank, rather than
his pay-as-you-go mobile, because they keep him on ‘hold’ for ten minutes. Then he
has to answer four security questions: date of birth, mobile number, occupation, and
postcode before they will tell him anything. Luckily, he has just enough money.
After reading the jobs sections of the local free papers that had come through the
door whilst they were away, he heads back to school to check out the sports centre.
21. Family
21.1. Early Thursday morning, as Gareth contemplates what looks like being a very
difficult meeting, he feels guilty. Even though he has almost recovered from his jet
lag, he had left home in a bad mood. He is frustrated with Ben, and suspects that he
has been mixing with ‘the wrong crowd’, as he does with Sara, and maybe even
taking drugs. Ben has been acting strangely – he seems more lethargic than usual –
and Gareth is worried not only for his son’s future but also for the example he is
setting his little brother. That morning, he’d shouted at Ben as he refused to get out
of bed, before snapping at Yasmin who was already lecturing Sara about being ready
for school in time. Neither of them want to see another terrible attendance report,
now generated by the indisputable evidence from her RFID-implanted tag.
22. The Call Centre again
22.1. His thoughts soon turn to his meeting with the employee suspected of abusing
company computing facilities, and the HR and IT managers. Since the briefing with
the team leaders on Tuesday he has received some documents from IT detailing the
employee’s Internet activities. He is wondering how he will deal with it. The
employee, Asabe, has been writing a cynical blog about working in a call centre.
Most of the blog has been written in her own time from her home computer, but
when he compares the information provided by IT with the staff roster, he spots that
she has also been posting in work time.207 On the other hand, when he doublechecks Asabe’s performance statistics for the last couple of months, he sees that she
appears to be a top performer. She has been taking the right number of calls,
achieving incentives set for quality, resolving most queries first time, and her
timekeeping is excellent. She has kept to her allotted times for lunch, tea and
bathroom breaks. On paper there isn’t a problem.208 Gareth is relieved.
22.2. In the meeting, Asabe, who was originally from Nigeria, explains herself. The
blog contains anonymised stories about her encounters with managers and
colleagues in the call centre. It turns out that Asabe has been feeling victimised by
jealous colleagues because of her high performance, and feels she has been bullied.
Sadly, her skin colour has become the focus of the bullying. She feels that her team
leaders have turned a blind eye to it even though she has informed them of her
concerns. Because she needs the work as she is saving up for university, instead she
205
The Advice Centre (nd.) Funding and benefits: Part-time students,’ http://www.advice-centre.info/PartTime%20Benefits.pdf#search=%22benefits%20for%20part%20time%20students%22
206
See ‘Key developments,’ Public Services Expert Report.
207
See: ‘Critical commentary and future directions’, Workplace Surveillance Expert Report.
208
See: ‘Key Developments’, ibid.
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has taken to blogging about her experiences to deal with the stress. Unfortunately
Asabe has unintentionally revealed the location of her workplace in the blog. In the
meeting the legal problems were aired: the company has been publicly identified and
its management criticised in a manner that could lead to legal liability under the
Race Relations Act if Asabe decides to take them to an employment tribunal. One of
its top performers was in danger of leaving. What was more, Asabe is now outraged
because she has been snooped on by her employer. A tense stalemate ensues.209
22.3. As the meeting ends, HR had resolves to investigate the allegations of bullying.
They encourage Asabe to keep a less public record of the incidences where she felt
bullied, and to keep her team leader informed so they can identify the culprits.
However Asabe now feels doubly aggrieved: she has been the target of bullying and
surveillance. She says she will be looking for other work and will consider taking
legal advice. Gareth wishes he had been around to help the team leader deal with the
initial situation. His instinct is that the whole matter should have been dealt with
more quietly, and that the company should have supported Asabe, rather than
pursuing its own legal interests.210 Looking forward to the weekend, he hopes that
the rest of the week would be quieter.
23. Fraud
23.1. Friday is a mercifully quiet day. As everyone returns to Finchley in the early
evening, a relaxing weekend is in store. Then as Gareth and Yasmin are preparing
dinner, she brings up the subject of their joint credit card bill which has arrived
whilst they were at work. They both know they have spent a fait bit on holiday, but it
has slipped Yasmin’s mind that the card had been refused earlier in the week, so they
both gasp at the size of the bill. Not only that, the card had maxed out on
transactions that they do not recognise at all: purchases at clothing stores and
restaurants in California appeared on the bill, but they did not even visit California.
More worryingly, is seems that that the card has been used to pay for access to
websites with names that sound pornographic and perhaps worse. Yasmin is
horrified. She has recently read about a pop star who has been put on the Sex
Offenders Register for accessing such child pornography sites. If she is investigated
what will her bosses think? Even if she is innocent, which of course she is, tongues
will wag and rumours will spread. She could even lose her job. Momentarily she is
tempted to check what these websites are all about on her home PC, but she realises
that this will only lead to evidence of her having visited the sites being recorded
somewhere in the depths of her computer.
23.2. Instead, Gareth immediately calls the customer services number on the bill. He
punches in their account details, and is transferred to an operator with a South
African accent, within seconds. He explains the situation. The operator cancels the
card straight away and said that in their case the credit card company would refund
the money lost to the account. They also advise that Gareth should inform the major
the credit-rating companies and inform them of the situation. He goes online and
applies for a copy of his credit record, and asks for regular email updates to see
whether any fraudulent credit applications have been made in his name.211
23.3. Feeling thoroughly harassed, Yasmin, Gareth and the kids eat dinner together.
Soon, Sara disappeara upstairs to listen to her favourite music; Toby goes to play
games online on the PC and Ben mutters something about ‘getting his stuff together
209
See: ‘Regulatory issues’, ibid.
See: ‘Key developments’, ibid.
Inside Out –East (2003) ‘Credit Card Cloning’ BBC Online, 7 July,
http://www.bbc.co.uk/insideout/east/series3/credit_card_cloning.shtml
210
211
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for tomorrow’. Yasmin and Gareth retire to the sofa where they gaze vacantly at the
news and eventually fall asleep.
24. Back in the city
24.1. On Saturday morning, Yasmin and Toby go for their weekly swim. As they walk
towards the tube station, Yasmin notices a Neighbourhood Watch sign, which
reminds Yasmin that she needs to renew her registration. At the station they have to
queue to buy Toby a ticket. This was annoying as Yasmin has an Oyster Card which
she thinks is excellent as she doesn’t have to worry about having the right change for
the turnstiles anymore. She just passes the card over the ‘reader’ as she goes through
the barriers, and the fare is automatically debited to the Oyster Card. Now that she
has subscribed to automatic online top-up, her card never runs out of money, so long
as there is money is her bank account.212 As they wait on the platform Yasmin is
aware that they are being monitored by the London Underground’s extensive
network of CCTV cameras213. One in the swimming pool, however, although she is
knows that they are watched over by lifeguards, she does not realise that they are
also being monitored by ‘Poseidon: the lifeguard’s third eye’ which automatically
detects any incidents of potential drowning214.
24.2. Ben also uses his Oyster Card today as, according to the text message he had
received from the ‘Stop the War’ organisers, he had to be at a Tube station that could
receive mobile phone signals at 12 o’clock, and be wearing either a baseball cap or
hooded top, so that his face would be less easy to capture on CCTV. Then, he would
receive a text message telling him where to rendezvous with the other protestors, and
saying that he would need to get there within 45 minutes. At the station, he easily
spots his mate Aaron and the organisers, who tell them to walk in ones and twos to
Grosvenor Square, and to converge from the surrounding streets on the American
Embassy at 1.30 precisely. Then, a huge banner will be unfurled, proclaiming ‘Stop
the War’, they will try to deliver a protest letter to the ambassador, and a
spokesperson will read the contents of the letter, in front of the banner. This will all
be filmed, and broadcast live on their web site. The whole event is due to last less
than two minutes after which they will disperse and go their separate ways.215 The
protest goes off as just as planned. By the time the police have arrived Ben and
Aaron, having retrieved the banner, are well away and were walking through St.
James’ Park on their way to Waterloo Station, to meet up with some of the other
protesters and catch up on the protest news. En route they have to pass Parliament,
and in an act of bravado, Aaron hurriedly unfurls the banner, drapes it over the big
black railings, hands Ben his mobile phone, and asks him to take a picture. As Ben
is zooming in, he feels a hand on his collar, and a voice says, ‘You’re under arrest!’
24.3. Three hours later they are released from police custody, with only an informal
warning.216 Although they were questioned, photographed, fingerprinted and DNA
swabbed they are relieved that no further action was taken against them.217
212
. The oyster card is a smart card that uses an RFID tag to identify the owner and keep a log of their journeys. This is
necessary because if you ‘make several journeys on the same day, once the total cost of these journeys reaches a cap, any further
journeys you make that day will be free, unless you travel beyond the zone(s) covered by your original cap,’ TfL (nd.) Oyster
On-line, http://www.tfl.gov.uk/tfl/fares-tickets/oyster/general.asp .
213
See: McCahill and Norris (2003) op cit. n.44.
214
‘Poseidon’ uses computer vision software to identify possible drowning incidents, for instance a body that remains still
underwater for ten seconds or more, Poseidon (nd.) ‘Technology overview’, http://www.poseidon-tech.com/us/technology.html .
215
These are all counter surveillance measures. They know the police monitor their web site, and suspect that their phones are
tapped. By only revealing information at the last minute and using a newly purchased mobile phone to send the text messages
they believe this will lessen their chances of interception.
216
Technically they have breached the new law banning protest within one kilometre of the Houses of Parliament without prior
police approval. See: ‘Parliament protesters fight ban’ BBC News, 31 August 2006,
http://news.bbc.co.uk/1/hi/england/london/5303558.stm
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24.4. Unknown to the boys an intelligence report was filed by the arresting officer,
which, an hour later, was scanned by an officer investigating the earlier
‘spontaneous’ protest outside the embassy. He is intrigued that they had travelled to
Marble Arch station, and suspected that this was the meeting point for the protesters.
He wonders if he could request permission to access the Oyster Card database and
gather all the names of people who finished their journey at Marble Arch earlier
today.218 It would be great if he could identify all the protestors, but then again they
would probably be far too many to sift through and he is unsure if he would be
granted permission under data protection laws for such a blanket disclosure.219
24.5. It is late when Ben finally arrives home that night. He has been for a few drinks
with Aaron, and creeps in after everyone else has gone to bed. Even Sara, who has
taken to hanging out with her friends in the local burger joint until it shuts at 11.30,
is back. In the kitchen, he fills a pint glass with water and quietly climbs the stairs,
gently shuts his bedroom door and turns out the lights.
25. Conclusion
25.1. Is this week in the life of the Jones family so out of the ordinary? A lot of the
surveillance they encounter, much of it automated and out of sight, is met by most
members of the UK public on an everyday basis.220 Surveillance of international
travel, of mobility in urban space, of consumer spending, of Internet and mobile
telecommunication and of potential criminal activity is now an everyday occurrence.
Some of this is of benefit to such a family, and is appreciated, but much of it is also
personally threatening and has wider consequences. We have shown that
surveillance intensifies in a number of different situations: where a person is
vulnerable, whether they are about to transgress a legal or organisational rule, and
even where they are relatively empowered. The eldest and youngest members of the
family find that they are having their movement, whereabouts and the content or
state of their bodies tracked ‘for their own benefit and safety’. This is conducted
through schemes and products which are currently widely available and publicised to
the UK public and opted into voluntarily by the family members.
25.2. Surveillance is intensified when family members are either a suspected
perpetrator or victim of a crime. Deviance takes on a new meaning in the private
spaces of the workplace, shopping mall and school, where organisation-specific rules
define what is and is not acceptable behaviour. Different intensities of surveillance
occur which are aimed at either resolving ‘difficult’ situations or removing people
altogether. Consumers can also break rules: surveillance of consumers privileges
some but disadvantages others. This was illustrated in the case of credit cards,
loyalty cards and junk mail which feed and flow from the consumer profiles of
Yasmin and Gareth enabling them to purchase particular kinds of products at
reduced prices, whereas Ben, being a low-status customer is forced to wait on hold
to talk to his bank at his own cost. Patterns of unusual activity, however, highlight
the ever-present gaze of the bank. In all cases, any unusual or unexpected activity in
217
Police can now take fingerprints and DNA samples of all persons under arrest even though they have not been charged with
an offence. These will remain on the national databases. See: Johnston, P (2003) ‘Police to keep DNA files of innocent,’
Telegraph.co.uk, 27 March, http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2003/03/27/ndna27.xml .
218
An example of function creep: after the Oyster Card system was introduced as an easy way of paying for public transport, the
police realised that such data could be useful in criminal investigations.
219
In 2004 the Met made only seven requests for Oyster card journey information, in 2005 this had increased to 243 requested
which were granted on 229 occasions. See: Jones, S (2006) ‘Oyster cards used to track criminals,’ The Guardian, 14 March,
http://www.guardian.co.uk/crime/article/0,,1730518,00.html .
220
Both Yasmin and Gareth hold jobs which involve comparatively large amounts of surveillance, which allows us a more
focused discussion.
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relation to one’s category in a database, intensifies surveillance, with varying
consequences.
25.3. What is significant about this set of events? Apart from the fact that they reflect
much of our everyday experience, they highlight many of the issues with which this
report is concerned: in particular, the antecedents, consequences and experiences of
surveillance. The family encounter a wide range of surveillance, some of it overt
and explicit, some it covert and in the background: a full list of all the surveillance
encounters is provided in the appendices. In some instances, they make a choice to
engage with surveillance, at others they do not. When outside the family home as
citizens, consumers, travellers, and workers the family exercise little choice as to
whether they are subject to surveillance. In the case of consumer products, the
airport, and urban surveillance by police and CCTV, the family are unaware of the
extent of information held on them, and surveillance occurs as a normal element of
infrastructure. In the case of health screening and surveillance in schools, recipients
are advised to submit to it ‘for their own good’, which raises questions about the
kinds of choices being made. Any meaningful debate about the surveillance society
will rest upon the public having at least some knowledge of what information is held
on them, where it goes, what is done with it and why. It will also rest on what can
be done to regulate the excesses of surveillance, and by whom.
25.4. In spite of this variation, the surveillance processes we have highlighted have one
thing in common: they all affect the family’s life chances, decision-making and
relationships. Privileged consumers, such as Gareth, access services faster than his
impoverished student son, Ben. Vulnerable people, such as Geeta and Toby, have
the boundaries of their homes and bodies monitored, and lose autonomy and privacy
in the process. Even being considered as merely suspicious changes behaviour.
Yasmin is conscious of her criminal records check, and Sara dares not answer back
to security guards. The prospect of being excluded, or having the terms of one’s
engagement with society change, emerges as a stark consequence, and appeals to the
family’s deepest anxieties. Hence, it is not surprising that the family shows a great
deal of ambivalence towards it. Yasmin and Gareth, at various points, use
surveillance techniques in an empowering way to protect their own credit ratings,
monitor their children’s and Yasmin’s mother’s health and well being. At work they
use their own social networks and relationships to mediate and interpret surveillance
data. In particular, the introduction of surveillance into the childrens’ schools
highlight family relationships, and exacerbates existing tensions. The range of
experiences of surveillance exercised upon and by the family, mean that addressing
‘surveillance society’ as a single and monolithic phenomenon is unwise. It is
dynamic, multilayered and complex. The question now concerns what will happen
next.
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Part C/2:
Glimpses of Life in the
Surveillance Society, 2016
26. Introduction
26.1. Danish physicist, Niels Bohr famously quipped that “Prediction is very difficult,
especially if it's about the future.” We did not want to get into the business of
futurology or prediction here, however we thought it would be useful to provide a
few vignettes which take some incidents from the scenario and throw them forward a
short time into the future, to indicate some of the changes which regulators will have
to anticipate. We use the same cast of characters as for the 2006 scenario at the same
stages of life and social position.
26.2. If we are to suggest overall themes they are that the future surveillance society
will be one of pervasive surveillance, primarily directed at tracking and controlling
mobilities of all kinds (people, objects and data) and at predicting and pre-empting
behaviour. We also assume that the shift of power from public to private continues.
26.3. These glimpses should not be taken to mean that in practice all of the systems and
processes here would all ‘work’; as detailed in Section 9.11 above, technology has
limits and plans fail. However for the purposes of the glimpses here, we have
assumed that things work as advertised.
26.4.
But these glimpses are also fairly conservative. This future is nowhere near as
dystopian and authoritarian as it could be: we have assumed the same kind of
mixture of care and control as has generally existed in Britain since WW2. They do
not factor in the possibility of radical new developments – for instance complete
ecological disaster, or world or civil war that might turn risk categories from rough
stand-ins into dividing lines of violent conflict or conditions for genocide. That
should not be taken as meaning that such things are not possible: they have happened
before, are happening now in other parts of the word, and can happen again
anywhere.
26.5.
•
•
•
•
•
•
•
•
•
•
•
•
•
64
We present 14 vignettes, entitled:
Identity Control
Border Crossings
Managing Brandscapes
Cashless Shopping
Keeping Tabs on Kids
Total Social Solutions?
Driving Change
Friendly Flying Eyes in the Sky
The Unidentified Underclass
Virtual Tracking
Your Life is Our Business
Looking After You
The Hall of Mirrors
A Report on the Surveillance Society
27. Identity Control
27.1. Arriving back in Britain from Florida in 2016, the Jones family face a rather
different scene than the family of 2006. It is hard to know the difference between the
two countries by what they experience at the border. Both Britain and the USA’s
immigration and border control services, along with those of all EU countries, and
other G10 industrialised countries are outsourced to the same transnational private
consortium, BorderGuard.221 Continued fears of illegal immigration and government
rhetoric about the ‘War on Terror’ led these governments to commission and
implement a ‘smart border’ scheme, driven by both open and hidden surveillance
technologies.
27.2. Passport control is now a series of cameras ands scanners taking images of face,
iris and fingers, which are compared to those on the standardised biometric
passports, or in Britain’s case, the ID card, introduced across the G10 countries and
the EU.222 The passport or ID card is also read by machine and the multiple data on
the built-in RFID chip now include all citizenship, immigration, visa and criminal
justice data, along with health information. This is instantly compared to state and
transnational databases, as well as a whole raft of data-mined information on
consumer transactions that BorderGuard gets on regular subscription from specialist
companies.223
28. Border Crossings
28.1. The result of smart borders is that transit happens more swiftly for some, and less
so for others, depending on whether their nation of origin has signed up to the
scheme. BorderGuard has made concessions, however. It has allowed citizens from
non participating countries faster transit if they have biometric passports. Pakistan,
although not a member of the scheme, offers biometric passports to its citizens, but
at a significant financial cost that individuals must bear personally.224 Geeta has
never bought a biometric passport and consequently has to wait for several hours and
is subjected to various extra searches and questions.
28.2. Sara’s deliberately shocking fashionable teenage appearance arouses no
suspicion, but Yasmin’s obviously ‘Asian’ features trigger alerts. When her ID card
scan connects to her credit card records from the USA, she is pulled over for
questioning.225 She doesn’t have to wait until she goes shopping to find out that
what her cloned card has been used for. She is, however, required to explain away a
221
See: Borders Expert Report
The International Civil Aviation Authority agreed standards for Machine Readable Travel Documents (MRTDs) in 2004. This
process has been driven by the current G8’s Secure and Facilitated International Travel Initiative (SAFTI), see: Statewatch
(2004) ‘G8 meeting at Sea Island in Georgia, USA - sets new security objectives for travel’,
http://www.statewatch.org/news/2004/jun/09g8-bio-docs.htm . This is despite concerns over the ease of cloning of RFID chips:
Johnson, B. (2006) ‘Hackers crack new biometric passports’, The Guardian, 7 August
http://politics.guardian.co.uk/homeaffairs/story/0,,1838754,00.html . The fact that UK ID cards could easily morph into or merge
with biometric passports has already been noted: Lettice, J. (2005) ‘UK biometric ID card morphs into £30 'passport lite'’, The
Register, 8 July, http://www.theregister.co.uk/2005/07/08/id_card_as_passport/ .
223
See Consumer Expert Report. In 2016 there are still ongoing issues between states and outsourced border security about the
intellectual property issues around travel data. The UK government maintains its ‘right’ to sell ID data, as was proposed in 2006:
Elliot, F., ‘ID plans: powers set to widen’, The Independent, 6 August 2006,
http://news.independent.co.uk/uk/politics/article1216000.ece . The only voice that still remains lost is that of the citizen.
224
There has been some consideration of these potential problems, see e.g.: Koslowski, R. (2004) ‘International Cooperation to
Create Smart Borders’, Paper presented at North American Integration: Migration, Trade, Security, Ottowa, April 1-2.
http://www.irpp.org/events/archive/apr04/koslowski.pdf
225
Informal racial profiling undoubtedly already occurs and has occurred for a long time. It has also been suggested by UK
police as a formal policy http://www.timesonline.co.uk/article/0,,22989-1717624,00.html For background, see:
http://www.aclu.org/racialjustice/racialprofiling/index.html
222
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whole range of dubious purchases in an area of the country that she hasn’t visited.
She is allowed to go an hour or two later after the data are cross-referenced with
records in Florida and it is determined that her card has been cloned.226 The bank
will still not return the money to her account for several weeks – some things never
change!
28.3. At customs, everyone is subject to a full-body scan: a virtual strip search using a
millimetre wave scanner.227 Sara thinks she hears one of the customs officers make
a lewd remark about her piercings228 but there’s no point in complaining as it will
just draw attention to herself and mean more trouble.229 In any case, it’s pretty likely
that everything the officer said was recorded by the CCTV mics, which are used for
work monitoring, and he may end up in trouble anyway.230
29. Managing Brandscapes
29.1. When the Jones family visit their local shopping centre, CCTV and security
guards are still there and the centre managers still have their networks of contacts to
spot the undesirables and keep them away from the shops and the shoppers.
However, spatial modelling of the brandscape231 and changing advertising according
to the flow of different categories of consumer is now a strategic priority for most
retailers; new business connections have developed between the owners of the
shopping centre and its tenants, the large retail chains to this end.
29.2. The retail chains allowed the shopping centre access to a huge shared database,
modelled on Reward Card data, to generate information about the flow of shoppers.
The system relies on RFID clothing tags, ubiquitous scanners and consumer datasets.
Scanners placed in the doors of participating shops log the unique identifiers found
in RFID tags embedded in the clothes of shoppers. Information about the item of
clothing, its brand, where it was purchased, and by whom, is compared against the
consumer profiles of different wearers. Intelligent billboards placed at eye level
display advertising from a select range of products aimed at that consumer profile in
real time. Sara is delighted to see the new album cover of her favourite band appear
on the screen to advertise the nearest music store and Toby notices information
about computer games. Ben doesn’t quite get it. Nothing he has seen so far interests
him at all. Marketing messages can also be sent to consumers’ hand held devices
when they are in the vicinity of particular stores.
226
The joining up of databases will have some possible positive effects – instead of the inconvenience and possible more serious
consequences of suffering credit card cloning with weeks of investigation, it may be possible to resolve these crimes much more
quickly, as with the example here.
227
These full-body scanners come in several forms and are already being piloted, for example, the low-level X-ray-based Secure
1000 from Rapiscan: http://www.rapiscansystems.com/sec1000.html , tested at Heathrow airport, see: Lettice, J. (2004) ‘'See
through clothes' scanner gets outing at Heathrow’, The Register, 8 November,
http://www.theregister.co.uk/2004/11/08/heathrow_scanner_pilot/ ; and the millimetre-wave scanners being developed by
QinetiQ, and tested by Eurotunnel:
http://www.qinetiq.com/home/newsroom/news_releases_homepage/2004/3rd_quarter/Next_generation_security_screening.html .
228
Research on CCTV control rooms in the 1990s showed operatives used equipment for all kinds of inappropriate sexist
behaviour – a technology that allows such intimate imagery is likely to attract similar problems. McCahill, M. and Norris, C.
(1999) Watching the workers: Crime, CCTV and the workplace. In: Davis, P., Francis, P. and Jupp, V. (eds.) Invisible Crimes:
Their Victims and their Regulation. London: Macmillan.
229
‘Normalisation’ at work, or the ‘chilling effect’ of a surveillance society.
230
But on the other hand, surveillance can provide protection or redress against harassment.
231
The origin of the term ‘brandscape’ is defined by the UK Design Council as the ‘The total experiential reach and engagement
of a brand. A term that encompasses all those who touch and interact with the brand including customers, suppliers, employees,
competitors, re-sellers, distributors, partners, etc’: http://www.designcouncil.org.uk/webdav/harmonise?Page/@id=6046&Session/@id=D_rPJLjJbFNakH0E0GQvlo&Document%[email protected]%3D5232
%5D/Chapter/@id=7 .
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30. Cashless Shopping
30.1. The shopping centre then mines the data to find consumers who are the most
frequent users of the shopping centre to offer them membership in their ‘cashless’
scheme. The scheme enables more ‘valuable’ consumers232 to get an implanted chip
to help them shop.233 It costs £200 to get implanted. Then, consumers can load the
chip with money, and pay in the different stores by getting their arm scanned rather
than use a credit, debit or store card. The marketing for the cashless system tells
shoppers that, as chip wearers they are eligible for discounts at stores of their choice
in the shopping centre,234 which will soon redeem the initial money paid for the
implant. They also get access to a VIP lounge, spa and massage facilities on site,
and they are less of a target for muggers or pickpockets, and even credit card fraud.
30.2. There have been rumours of shoppers being mugged in the car park and having
the chips cut out of their arms, but the centre managers have dismissed theses stories
as an ‘urban myth’. Gareth considered joining up, but was worried as he had seen a
television programme about the chips having only low level encryption and being in
danger of corruption by viruses.235 Chipping is however preferable to using a credit
card for another reason. The consequences of being called about ‘patterns of unusual
activity’ on one’s card are now much more serious. Because of more sophisticated
predictive algorithms based on individual consumer profiles, being called by the
bank is now understood to imply guilt. Cards are automatically deactivated, and the
consumer is required to provide independent evidence of their identity and location
to the bank. The shopping centre takes a dim view of information requests from
shoppers for this purpose.
31. Keeping Tabs on Kids
31.1. By 2016, mobility tagging and tracking have become a critical part of
education.236 Following a series of high profile cases in which pupils were either
lost, injured or killed, many primary schools and even nurseries, became very
concerned with keeping tabs on the whereabouts of their pupils to avoid legal
liability.237 Within ten years more and more schools adopted drug testing, in
response to government policy aimed at identifying problem children early, tackling
poor attendance and improving concentration in class – important in the face of the
ever-present league tables.238
31.2. The cashless card system in Toby’s school took off, with most families using it as
a way of monitoring what their children ate. After three years, NSC, the
supermarket, bought the cashless card company, seeing it as a way in to lucrative
youth markets, building brand awareness by providing educational equipment. To
get the resources, the parents are now required to swipe their child’s card at the
checkout, which identified the school, the pupil and the parent. The scheme funds
computer equipment, science equipment, musical instruments and sports equipment
for participating schools, providing their parents shop at NSC. The amount of
232
The most valuable are determined by a credit check and reference to their consumer profile. Being a valuable customer means
that you are likely to spend more. Implants become a status symbol.
See Baja Beach (nd.) ‘Zona VIP,’ http://www.bajabeach.es/ .
234
This will enable the database to record further individuals particular choices
235
See: Rieback, M.R., Simpson, P.N.D., Crispo, B. and Tanenbaum, A.S (2006) ‘RFID Viruses and Worms,’ Department of Computer Science
Vrije Universiteit Amsterdam, http://www.rfidvirus.org/ .
236
It is now in an embryonic form in the USA. See, e.g: Leff, L. ‘Students ordered to wear tracking tags’, Associated Press, 9
February 2005, http://www.msnbc.msn.com/id/6942751/ .
237
See e.g.: ‘Neglect ruling in girl pond death’, BBC News, 23 March 2006,
http://news.bbc.co.uk/1/hi/england/coventry_warwickshire/4837614.stm .
238
In the UK, educational league tables rank schools according to the exam results of their pupils.
233
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resources donated depends on the value of the parent’s purchase. Some of NSC’s
key suppliers from the food and drink conglomerates have begun to install their
vending machines in schools. Toby’s school has continued with the scheme, and
every time some new equipment arrived, the prominent ‘NSC’ brand could easily be
seen.
31.3. The card has other uses too. The local education authority monitors the types of
food being consumed in Toby’s school, and uses it to inform various ‘healthy eating’
campaigns. The campaigns are also part of the authority’s response to the
Department for Education’s Citizenship education programme. This is because the
card has gradually became more integrated, not only holding data on the child’s meal
purchases, but also on their attendance, record of achievement, extra curricular
activities, drugs test results, and Internet access. Records from the database attached
to the card are submissable as evidence of students’ citizenship activities. Whilst the
increase of surveillance in schools has brought measurable benefits to the schools
and pupils themselves, children are gradually becoming socialised into accepting
body surveillance, location tracking and the remote monitoring of their dietary intake
as normal.
32. Total Social Solutions?
32.1. In 2016, residential areas are more clearly divided between gated private
communities, like that where the Jones family live, patrolled and monitored by wellequipped corporate security firms, and former council estates and low-cost housing
like the Dobcroft Estate. For the Joneses, the camera and identification systems in
and around the community keep insurance costs to a minimum.239
32.2. On the Dobcroft Estate, Yasmin’s work is never done. Her multi-agency team has
now been subcontracted to yet another private consortium called ‘Total Social
Solutions’(TSS). TSS is paid to monitor and enforce the multi-level Personal
Behaviour Schemes240 of which everyone on the Dobcroft Estate is a ‘customer’
from birth241 (and some are identified even before242).
32.3. Many of those on higher levels of PBS243 like Wilson Green, have RFID implants
which register automatically with sensors installed in their homes and at the
entrances of the estate.244 The implants are supposedly voluntary, but like the
schemes in shops and schools, compliance brings rewards, not least of which is
earlier removal from the probationary scheme.
32.4. At the moment the whole Dobcroft Estate is also subject to one of its periodic
‘area wide curfews’ after ‘youths’ from the estate were supposedly identified by an
239
The Association of British Insurers (ABI) has called for this in a major report on housing. ABI(nd) Securing the Nation: The
Case for Safer Homes, London: ABI, 12.
http://www.abi.org.uk/BookShop/ResearchReports/Securing%20the%20Nation%20July%202006.pdf
240
It is envisaged here that Anti-Social Behaviour Orders and Intensive Supervision schemes etc. (see Crime and Justice Expert
Report) have all be standardised into general Personal Behaviour Schemes for those fitting certain patterns of risk of offending.
Since all the residents of the Dobcroft Estate fit at least one criteria by the very fact of living on an estate where crime is likely to
occur they are all subject to PBSs.
241
See n.191.
242
So-called ‘biocriminology’, or the genetic aspects of criminal behaviour, are enjoying a revival of interest at the moment; see
e.g.: Rose, D. (2006) ‘Lives of crime’, Prospect 125(August), http://www.prospect-magazine.co.uk/article_details.php?id=7604
. For an earlier critique of this approach, see: Rose, N. (2000) ‘The biology of culpability: pathological identity and crime control
in a biological culture’, Theoretical Criminology, 4 (1), 5–34.
243
By 2016, prison is now just another level of PBS. Social work, probation and prison are all now a continuum, and largely
privately managed.
244
Supposedly to improve security for the residents, the Dobcroft Estate was fenced in 2010, leaving only four entrances and
exits, which are monitored by Community Support Officers, cameras and RFID scanners.
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elderly woman from the Sunnyview Retirement Village (where Geeta also lives) as
causing trouble. The woman spotted the suspicious activity on the local video
surveillance cameras. The cameras can be watched on the local security channels on
digital TV, which also includes a ‘rogues’ gallery’ of those who have known to have
infringed their PBSs.245 In residential areas, public area CCTV has almost entirely
become Open-Circuit Television (OCTV). All under 18s are currently barred from
entering or leaving the Estate from 6pm until 6am. For Sara, this means that to see
her best friend, Aleesha, outside school hours, one of them has to risk an encounter
with the estate’s Community Wardens, who are armed with tazers and tend to shot
first and ask questions later.
33. Driving Change
33.1. When Gareth drives out of the community, the wrought-iron gates swing open
automatically, and his number plate is read, noting his exact time of departure, and
the number and identity of the driver and passengers. On the roads, ANPR has been
nationwide since 2008 and there are now so many cameras there is no point in trying
to second-guess where they are with scanners or maps any more.
33.2. In any case, the handheld computer that Gareth plugs into his car246 is linked to
the Galileo global satellite navigation system247 and to state congestion cameras, and
helps provide the quickest route. Finding the shortest route is also less expensive as
through the ANPR system, car mileage is automatically charged to Gareth’s bank
account.248
34. Friendly Flying Eyes in the Sky
34.1. Like the border, the shopping centre and school, the wider city of 2016 is at once
more under surveillance yet sometimes less obviously so at an immediate glance.
Security has been aestheticised; designed into many of the buildings and surveillance
is built into the infrastructure and architecture – it is ubiquitous but has
disappeared.249 Many important state buildings which had been surrounded by
concrete barricades after 2001, now appear open once again, but are instead
protected by a variety of sensors linked to impenetrable automated barricades that
sink into the ground when not immediately needed.
34.2. When Ben and Aaron go into the centre of London to join an anti-war protest
they are monitored by small remote-controlled spy planes, Unmanned Aerial
Vehicles (UAVs).250 These were introduced for the Olympics of 2012, but instead of
being withdrawn afterwards, the ‘success’ of these ‘friendly flying eyes in the sky’
245
Such a scheme was introduced as an experiment in Shoreditch in London in 2006. It was immediately dubbed ‘ASBO TV’,
see e.g.: Swinford, S., ‘Asbo TV helps residents watch out’, Times Online, 8 January 2006,
http://www.timesonline.co.uk/article/0,,2087-1974974,00.html .
246
In 2016, most people now have these devices which incorporate roaming wireless Internet access, telephone services,
computer navigation and more. The navigation function also ensures that the devices (and therefore their operators) are trackable.
247
Galileo is the European civil alternative to the US military GPS system. The first satellite was launched in 2004 and some
services will be operational by 2008, see: ‘Galileo, European Satellite Navigation System’ CEC Directorate General Energy and
Transport, http://ec.europa.eu/dgs/energy_transport/galileo/intro/future_en.htm .
248
There are many potential schemes. See .e.g.: Independent Transport Commission (2006) Paying to Drive
http://trg1.civil.soton.ac.uk/itc/p2d_main.pdf .
249
See: Infrastructure and Built Environment Expert Report.
250
UAVs have been in use by the US military for some years: currently the best-known example is the ‘Predator’ reconnaissance
drone aircraft used in Iraq; see: ‘Predator RQ-1 / MQ-1 / MQ-9 Unmanned Aerial Vehicle (UAV), USA’, airforcetechnology.com, 2006, http://www.airforce-technology.com/projects/predator/ . Many uses have been suggested in the UK, see:
Jha, A.,‘On the horizon ... pilotless planes as fishermen's and firefighters' friends’, The Guardian, 30 August 2006,
http://www.guardian.co.uk/science/story/0,,1860825,00.html . In Los Angeles police are already experimenting with small
remote control spy planes called ‘SkySeer’: Bowes, P., ‘High hopes for drone in LA skies’, BBC News, 6 June 2006,
http://news.bbc.co.uk/1/hi/world/americas/5051142.stm .
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as the government has dubbed them,251 has been hailed by the Mayor as a reason for
their continued general use.252 People have almost stopped noticing them now.
34.3. CCTV is also less noticeable. Smaller cameras are embedded in lampposts at eyelevel and walls, which allow the more efficient operation of the now universal facial
recognition systems.253 Morphing software which combines images from multiple
cameras to build a 3-dimensional picture is also being pioneered, although
campaigners and lawyers argue it is inaccurate and not a ‘real’ image.
34.4. It is not just the cameras themselves. Almost universal wireless networking
allows the cameras to be freed from bulky boxes and wires. In addition, the cameras
are linked to intelligent street lighting which provides ‘ideal’ lighting conditions for
recognition software, and also movement activated floodlighting and extra cameras
in the case of crowd ‘clumping’ or unusual movement.
35. The Unidentified Underclass
35.1. After the protest in 2016 Ben and Aaron are stopped by private security
employed by the Westminster Business Improvement District.254 The guards are
remotely supervised by police operators via their handheld computers255 and helmetmounted microcameras, which scan the two boys.256 Ironically it is the police and
security officers themselves who have been most concerned about the continuous
monitoring as it means they are under constant scrutiny and feel they have lost
‘flexibility’ of response.
35.2. Ben submits to the usual DNA swab, which is now analysed instantaneously, and
hands over his ID card, which is scanned. As the data flicks up on his screen, the
officer jokes that it seems ironic that an anti-capitalist like him has just been on
holiday in the USA.257 Ben grimaces politely.
35.3. ID cards are still supposedly voluntary and Aaron, who comes from a Christian
family, refuses to have one. His mum says it is ‘the mark of the beast’, but he just
wants to be left alone. He’s finding it hard now though: not having a card means he
has effectively opted out of the chance to apply for government jobs, receive benefits
or student loans and he can’t travel by plane or mainline train even within Britain.
He’s beginning to wonder if it’s worth it and how he can live: he’s heard about
cooperative projects in the countryside where people live without ID, but he’s a city
boy and he’s afraid of ‘dropping out’. It’s about to get worse for him: as a young
251
‘The friendly eye in the sky’ was how CCTV cameras were referred to by a Home Office minister as far back as 1995, see:
Campbell, D. (1995) ‘Spy cameras become part of the landscape,’ The Guardian, 30 January: 6.
252
Major sporting events have had a history of being used for the testing and introduction of new surveillance technologies. For
instance, on CCTV and the 2002 World Cup in Japan, see: Abe (2004) op cit., n.161; and on CCTV and the Athens Olympics,
see: Samatas, M. (2004) Surveillance in Greece, Athens: Pella.
253
See Crime and Justice, and Infrastructure and Built Environment Expert Reports. One of the big problems with facial
recognition had been the angle of view of CCTV cameras; see e.g.: Introna, L. and Wood, D. (2004) ‘Picturing algorithmic
surveillance: the politics of facial recognition systems’, Surveillance & Society, 2(2/3): 177-198.
254
Urban governance is already being turned over to Public-private partnerships, Town Centre Management organisations
http://www.atcm.org/ and BIDs. According to the government, BIDs provide “an investment in the local trading environment
through the provision of added value services” http://www.ukbids.org/ In 2016 one of the biggest regulation issues is
information sharing between state and private security firms acting on behalf or instead of the state, especially now the Police
Naitonal Computer links so many databases together, and that police, probabiton, pison and social services are so interconnected.
255
Many police services are already trialling these, see e.g.: ‘Pocket computers put police 'in the picture'’, West Yorkshire Police,
28 March 2006, http://www.westyorkshire.police.uk/section-item.asp?sid=12&iid=2226 , and the ‘Airwave’ scheme (see Crime
and Justice Expert Report) is designed to build them in.
256
Again, helmet cameras linked live to control rooms are being introduced in several areas already; see e.g.: ‘Police use anti-yob
head cameras’, BBC News, 23 March 2006, http://news.bbc.co.uk/1/hi/wales/north_east/4836598.stm .
257
The police and their private allies have access to just about every database now linked by the Police National Computer.
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black male with no ID card, he is highly categorically suspect and the police control
room instructs the security personnel to bring him in for extra questioning.258
36. Virtual Tracking
36.1. After Ben is let go by the police he heads home to Finchley, but his own
handheld computer is now being tracked via the Galileo system259. He has also put
on a watchlist for communications monitoring: his ISP has been served an automated
RIPA 2 order that all his Internet traffic and e-mail communications are saved and
passed to police.260 As most telephony is now conducted over the Internet, and old
landlines are disappearing, this covers all Ben’s communications.
36.2. One of the consequences of this and the continued ‘ownership’ of the Internet by
US-based companies has been renewed efforts by the Open Source movement, and
also by other powerful nations to create ‘alternative Internets’. By 2016, these
include a much more controlled Chinese language project261 that now covers much
of South-East Asia, several transnational corporate ventures including the
‘Googlenet’262 and many more libertarian and ‘transparent’ ‘Net projects.263
36.3. One unforeseen result of the surveillance of Ben’s communications is that Ben’s
younger brother Toby, who occasionally uses Ben’s accounts (largely just because
he enjoys cracking) is also drawn into the monitoring. Toby lives a lot of his life
online in 2016, in Massively Multiplayer Online Games (MMOGs): virtual worlds
that have their own rules and entire alternative economies.264
36.4. The surveillance society has already spread here too. Players’ behaviour in the
game265 is monitored by companies who aim to understand the new opportunities for
emerging real-life markets. A whole new class of corporate game player has
emerged. These players research the habits of people via their avatars and market
both virtual and real products inside and outside these worlds to other players.266
36.5. Police have also begun to experiment with software also monitors MMOGs to
identify avatars who exhibit certain types of behaviour that could indicate real-world
258
In 2016, there are still arguments in the media and politics around the police doing this. But they argue that ID cards provide
an easy way of determining someone’s bona fides, and they cannot take the risk oaf assuming the innocence of people without
one.
259
See n.247.
260
The current Regulation of Investigatory Powers Act (RIPA) 2000 allows limited record retention, but we assume that police
and security services will want remaining ‘loopholes’ closed, most probably in response to a some highly publicised scandal
connected to terrorism or paedophilia, and achieve this with a new RIPA in 2009.
261
This has been under development for some time, see: ‘China to launch ‘alternative’ Internet,’ New Scientist Technology Blog,
1 March 2006, http://www.newscientist.com/blog/technology/2006/03/china-to-launch-alternative-internet.html
262
Reports have been circulating since 2005 of Google’s ambitious plans in this direction, see e.g: Hedger, J. (2005) ‘Is Google
building an alternative Internet?’ SiteProNews 23 September, reprinted: http://www.wnwdesign.co.uk/wordpress/archives/197
263
See e.g.: Brin, D. (1999) The Transparent Society, Reading MA: Perseus. http://www.davidbrin.com/tschp1.html
264
MMOGs, by some estimates, currently have around 13 million subscribers, with the largest being World Of Warcraft,
http://www.worldofwarcraft.com/index.xml , and the Korean game family, Lineage I, http://www.lineage.com/ , and II,
http://www.lineage2.com/ . Other virtual worlds are more like analogues of the real world, and include Second Life:
http://secondlife.com . They are becoming increasingly immersive and their economies intersect more and more with the real
world, with items from the games being traded for ‘real’ money on auction sites such as ebay, http://www.ebay.com . See
MMOGCHART.COM, http://www.mmogchart.com/ for some statistical analysis.
265
Residents of virtual worlds are usually represented by an ‘avatar’, an online character.
266
There have already been some accounts of ‘virtual surveillance’; see e.g.: ‘Confessions of a Virtual Intelligence Analyst’,
Terranova, 15 March 2006, http://terranova.blogs.com/terra_nova/2006/03/confessions_of_.html . Marketing analysts have
already identified significant emerging virtual markets which means that companies are starting to target game worlds, see e.g.:
Burns, E., ‘Marketing Opportunities Emerge in Online Gaming Venues, ClikZ, 1 August 2006,
http://www.clickz.com/showPage.html?page=3623035 , and the first ‘virtual billboards’ have already been launched, see:
Shields, M., ‘Massive Unveils Toyota Ad Units Within Anarchy’, Mediaweek, 19 July 2006,
http://www.mediaweek.com/mw/news/interactive/article_display.jsp?vnu_content_id=1002876380 .
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criminal tendencies in their players.267 This of course is hugely controversial
amongst gamers who argue that the escapism of virtual worlds should not be
mistaken for real life.
37. Your Life is Our Business
37.1. The call centre of 2016, in some respects, is identical to the call centre of 2006.
Employees are still monitored every minute of the day, via a computer which records
every activity they perform, how long they perform it and how well they do so.
Methods of employee recruitment and reward are very different, and characterised
throughout with surveillance techniques which Gareth has had to get to grips with.
37.2. During recruitment, employees are now subject to a range of biometric268 and
psychometric tests, and lifestyle surveys. Their lives outside work, and their
background are the subject of scrutiny. It is felt to be increasingly important that the
lifestyle profile of the employee match those of the customers to ensure better
customer service.269 Frequently, prospective employees are apprehensive about the
health tests, and so have begun, on the advice of the recruitment agencies that supply
the call centres, to volunteer their health information to avoid the tests. To save
time, recruitment professionals now regularly discard CVs without volunteered
health information.
37.3. Gareth is also a firm believer in the ongoing management of employee wellbeing. After all, how is a management team to know anything about what is making
their employees tick by simply using a set performance statistics?270 For example,
periodic biometric testing alerts the employer to any health problems, and also
signals whether the employee needs counselling.271 In conjunction with a local gym,
which also has the same iris-scanning access control system as the call centre,
employees can exercise for a reduced entry fee. Their gym attendance shows up on
their electronic employment record. Employees who do not attend the gym regularly
are sometimes questioned about their lifestyle in their annual appraisals, particularly
if their performance at work has been below par. Periodic psychometric testing also
indicates to management whether the employees’ attitudes are thought to be
compatible with company values and culture.
37.4. Call centre work has bifurcated: the most simple queries and administrative tasks
have been automated or outsourced offshore. However some call centre jobs now
involve incredibly complex personal sales work. With Reward Card data consortia
amalgamating and selling detailed information on consumer profiles, call centres are
able to provide an integrated service to their most valued customers. When a
customer rings for service on one product the employee’s desktop displays the
entirety of the customer profile. The employee is then able to ask the customer
about other products, perform online credit checks and offer discounted rates there
and then. With so much information on the individual consumer to hand, Gareth
calls this style of selling ‘customer intimacy’. He believes it is the way forward for
267
This was following a number of incidents over several years featuring spillover incidents from MMOGs and real-world crime;
see e.g.: ‘Chinese gamer sentenced to life’, BBC News, 8 June 2005, http://news.bbc.co.uk/1/hi/technology/4072704.stm .
Biometric testing, which involves mouth swabs and urine samples, easily analysed by the on-site nurse using a cheap kit,
means that the employer can assess whether the prospective employee poses any productivity risk, as the test alerts the employer
to potential health problems. It also enables the organization to design a flexible benefits package around the individual
employee, assigning different values to the health insurance component depending on the employee’s state of health.
269
A downside of this is that an organization would only employ a particular type of person, and thus have a less diverse
workforce, see: Workplace Surveillance Expert Report.
270
This statement is intended to highlight how management are involved in an ongoing push to ‘measure the unmeasureable’ –
work processes, attitudes, health and culture.
271
For example, for alcoholism if their blood alcohol levels are too high, as indicated by a urine test.
268
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call centre work, providing a more rewarding job for the employee, and a more
personalised service to their most valuable customers.
38. Looking After You
38.1. The Sunnyview Retirement Village is a rebranded and privately-managed set of
council flats in which 74-year old Geeta has lived for some years. She feels very
reassured even though she lives alone, because of her full participation in the local
‘Telecare’ scheme. In addition to motion detectors in every room, her bath has an
inbuilt heart rate monitor, her toilet has an device which measured her blood sugar
levels, and her kitchen had a number of sensor which detect gas leaks, fire and
floods. She has a panic button linked to the local authority call centre, which will
instantly call and check on her if it is pressed.
38.2. The presence of sensors and cameras all over her home means that her family
know she is safe and she gets fewer family visits than she use to, which leaves her
feeling a little isolated. However, she finds the RFID scanners in her fridge and
cupboards extremely useful. Every time she is running low on groceries, her
household management computer orders products from her local NSC supermarket
over the internet. Her subscription to home delivery means that she does not need to
make unnecessary visits to the shops.
38.3. By now, she is also used to her regular ‘Well Woman Checks’. She has even got
to know the nurse, Anita who was the daughter of one of her neighbours. The check
features the similar tests to those of 2006: blood and urine samples are taken, and her
height, weight, blood pressure and eyesight are checked. Luckily Geeta is in good
health.
38.4. However she is not party to the massive changes in health screening that have
been taking place behind the scenes. Unknown to her, the hospital which analyses
her results now routinely uses computer vision to analyse mammograms, and with
the huge development in patient databases, Geeta’s results are compared to those of
other women her age from every other health authority in the country.272 The
database also enables health professionals to hone in on risk factors surrounding
many of the diseases for which she is screened, so the statistical likelihood of her
actually suffering, for example, a heart attack, is predicted with a much greater
degree of accuracy. Her local Well Woman Clinic is continually providing Geeta
with dietary advice, as she is in a high risk group for heart disease.
38.5. This is also true for many other risk categories relating to common diseases.
Lines of statistical causality are being drawn between a much wider range of
ailments and their indicators. Larger proportions of the population are routinely
being categorized and screened, which helped the statistics. Yasmin often
complained about the number of times Gareth misses his ‘Well Man Check’
because, like many men, he is so reluctant to go to the doctors. She wonders how
many other people like him take the persistent screening requests seriously.
38.6. Health service statisticians are also keen to get hold of consumer data to support
their hypothesis that diet has a big role to play in the nation’s health. However they
are having difficulty. With the national patient database now developed and working
properly, the NHS is continually refusing insurance companies access for health
information on a ‘need to know’ basis, despite the huge temptation it has to make
272
See, e.g.: ‘The future of screening’, BBC News, 14 December 2002, http://news.bbc.co.uk/1/hi/health/2570787.stm .
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large amounts of money from doing so. As such, NHS bosses feel unable to ask for
access to private consumption information as a matter of principle. They are still
haunted by the scandal in Iceland, which sold its national DNA database information
to private companies for research and private profit.273
39. Conclusion: The Hall of Mirrors
39.1. Whilst surveillance is more pervasive in 2016, citizens, and particularly those
educated or wealthy enough to appreciate or afford it, are increasingly aware of it
and able to find new ways of negotiating their own personal economy of
information. Gareth is signed up to a personal information management service that
monitors his ‘data shadow’ online. This automatically corrects incorrect information
held on public and some consumer databases and which alerts him to further
problems.
39.2. Unfortunately not everyone is able to change and access their personal
information equally. Those less skilled in personal information management or less
able to pay for others to manage their information for them are at a severe
disadvantage. The ability of devices to block these messages (which are inbuilt in the
more expensive models) is critical to those who are privacy-aware and wish to make
relatively independent choices about consumption.
39.3. The digital divide has grown ever deeper with the some condemned to a
purgatory of surveillance and an inability to access information. Open Source
campaigners have managed to make it far easier to access and change personal
information held by the state and private companies working for the state, but this
access is one of the many things now made conditional on having an ID card. There
is an increasingly uneasy and as yet unresolved stand-off between citizens and the
state about who knows what, who owns data and who has the right to change data.
39.4. But in 2016, people are more used to watching and being watched. Many
voluntarily carry out whole life surveillance, or life-logging, recording almost
everything they do and storing it or placing it straight online274 in real-time. What
was a subculture in 2006 is starting to become mainstream in 2016.
39.5. However the culture of peer-to-peer surveillance has also splintered and produced
new variants. There is a great deal of vigiliante surveillance by hardliners who feel
that the state is ‘not doing enough’ to control terrorism, crime and illegal
immigration,275 and unofficial websites of the ‘suspect’ have proliferated, leading to
all kinds of mistakes and misidentifications.276 Protestors, artists and surrealists all
play with and resist pervasive surveillance in all sorts of ways, including disabling
public surveillance devices,277 using ‘sousveillance’ technologies or counter
273
McKie, R., ‘Icelandic DNA project hit by privacy storm’, The Observer, 16 May 2004,
http://observer.guardian.co.uk/international/story/0,6903,1217842,00.html . See also: Rose, H. (2001) The Commodification of
Bioinformation: The Icelandic Health Sector Database, London: The Wellcome Trust.
http://www.mannvernd.is/greinar/hilaryrose1_3975.pdf
274
Life logging of Life Blogging is developing out of Web logging (blogging). Many technologies are already being developed to
support it; see e.g.: Ward, M. (2004) ‘Log your life via your phone’, BBC News, 10 March,
http://news.bbc.co.uk/1/hi/technology/3497596.stm .
275
See the Borders Expert Report, and e.g.: the US Minutemen border security vigilantes: http://www.minutemanproject.com/
276
This has already been noted in connection with the panic over paedophiles that resulted in a paediatrician being driven out of
her home in 2000, see e.g.: Allison, R., ‘Doctor driven out of home by vigilantes’, The Guardian, 30 August 2000,
http://www.guardian.co.uk/child/story/0,7369,361031,00.html . We simple assume that in 2016, technologies will allow such
errors to circulate faster and more widely.
277
Guides to such resistance already proliferate; see e.g.: ‘Guide to Closed Circuit Television (CCTV) destruction’, Schnews,
http://www.schnews.org.uk/diyguide/guidetoclosedcircuittelevisioncctvdestruction.htm .
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surveillance.278. Anti capitalist activists like Ben and Aaron, for instance, like to
spend their Saturday afternoons slapping highly adhesive aluminium sheeting and
tiny battery powered microwave transmitters to the entrances of shops to disrupt the
wireless signals.279
39.6. Life logging is also not all that is can seem and with increasingly sophisticated
data management and video production software, lives can be adjusted or even
entirely created for purposes from pure entertainment through subversion to fraud.
For example, Toby has an alternative data shadow that a sophisticated cracker friend
of his has created is several years older than him and significantly more exciting and
better looking! And in 2016 there are increasing numbers of entirely virtual data
shadows, who have no real world counterpart, who appear to exist and are
themselves the subjects of information management and online surveillance by
automated systems working quietly and invisibly, inhabitants of an endless hall of
mirrors…
278
See Mann, S., Nolan, J. and Wellman, B. (2004) ‘Sousveillance: inventing and using wearable computing devices for data
collection in surveillance environments’, Surveillance & Society, 1(3), 331–355.
279
RFID is a line-of-sight technology. Interference can be achieved with microwaves, sheet metal, brick and even tree sap, see
e.g.: ‘RFID Technology’, RFID Centre, http://www.rfidc.com/docs/rfid.htm .
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Part D:
Regulating the
Surveillance Society
40. Introduction
40.1. As we have seen in Part C, the Jones family are under surveillance every day, and
in a large number of events and activities, and could be far more integrated in
surveillance processes in 2016. Some of the surveillance processes are benign or
helpful to them; others have more ominous or exploitative implications for a host of
values and interests that the Joneses, as ordinary citizens, hold to be important, and
that their country holds as important to its idea of a good life in a democratic society
governed democratically by the rule of law. For a great deal of the time, the Joneses
do not know, or understand, what happens or can happen to their personal
information: what is being collected, processed, sorted and communicated. Most of
the time, these are not matters of concern to them; but sometimes, things begin to go
wrong for them, and they suspect that something has happened to their information
to bring about adverse consequences. What do they think can be done about that?
What can be done about it, and by whom, if not the Joneses? What keeps
surveillance within legitimate bounds? How can these controls be improved, in order
for regulation to keep up with the Joneses?
40.2. Surveillance requires regulation. By ‘regulation’ we do not mean only legal
devices for controlling systems and practices, but any techniques that have a
regulatory effect280: that is, they apply rules, one way or another, to surveillance or
the processing of data by setting limits and controls. This may sometimes involve
facilitating ‘good’ surveillance by governing it within a framework of principles,
rules and required safeguards, whilst proscribing activities that do not submit to the
technique or regulatory regime. Most of the systems for controlling information
processes concerning personal data have been developed in the context of data
protection, with the aim of safeguarding privacy. Our comments in this section deal
mostly with these strategies. But regulating surveillance could be something else
again. Privacy protection might be the first line of defence against the undesirable
effects of surveillance. As such, it is not without strength and resilience, despite
much contemporary hand-wringing about its impotence and finger-wagging about its
supineness. On the other hand, it could be argued that surveillance protection must
be devised in its own right, because its undesirable effects are not only those that
have to do with the invasion of privacy, and that the first line of defence, though not
negligible, is vulnerable. We believe that both of these positions are valid in theory,
and that, in practice, surveillance protection is highly likely to coincide with, and to
borrow from, the experience and infrastructures of privacy or data protection. Yet, as
is shown in this Report’s discussion of the regulation of telecommunications, the
effectiveness of conventional rules of protection is a serious problem in regard to
certain applications and crucial technologies. How much invention is necessary for
surveillance protection, and how much of that would actually be re-invention, is a
matter for extended discussion beyond this Report, although we return to it below in
280
Baldwin, R. and Cave, M. (1999) Understanding Regulation: Theory, Strategy and Practice. Oxford: Oxford University
Press.
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our discussion of privacy impact assessment. So, too, is the question whether the
regulation of surveillance is really possible.
40.3. The surveillance practices that have been canvassed elsewhere in the Report point
up the implications for privacy and a host of other important values: justice, dignity,
self-determination, social inclusion, security, and others. Many of these values can
be safeguarded if privacy is safeguarded. Some forms of surveillance enhance the
ability of individuals, groups and societies to realise these, and are thus consistent
with what most people would expect of life in democratic countries where human
rights and liberties, as well as collective interests, are respected. On the other hand,
many surveillance practices threaten these values through the adverse effects they
have in a host of settings: at home, at work, in public spaces, in citizens’ relations
with the state, in shopping, at borders, in physical movement, and so on. The risk of
privacy invasion is commonly, but not necessarily, involved in these practices. New
technologies, and new uses for older ones, hold promises as well as pose dangers,
and future implementation of developments – for example, in ambient intelligence
and ubiquitous computing – may have implications that we can only guess at. Our
scenario relates existing surveillance practices to the life of a fairly typical family
going through a fairly routine week in their lives, and our vignettes project forward
several years. But they do not show the effects of regulation upon surveillance or
privacy invasion, even though that is the subject of a great deal of regulatory activity
in many countries, and at international levels and in a range of organisations within
and among states. Many would argue that these effects are likely to become weaker,
and even that regulatory systems and strategies are doomed to fail unless – or even if
– they are overhauled.
40.4. This section of the Report addresses these issues. We reflect on the regulatory
experience, and assess the adequacy of these efforts. We are mindful that measuring
the effectiveness of privacy protection and of the regulation of surveillance is a
highly debatable undertaking,281 but if this Report stimulates such debate, it will
have achieved one of its purposes. We also suggest possibilities for improvement.
41. What is Wrong with Regulation?
41.1. It may not be wide of the mark to say that regulation and the context of
discussion about privacy and surveillance, in any country, has suffered from some
common drawbacks. In pointing these out, we are implying no criticism of any one
country or of any participants in regulation; much less are we aiming to construct an
international ‘league table’. However, we are able to identify at least six areas of
difficulty of a general and contextual kind:
•
•
•
•
Regulation has tended to be reactive: that is, response had been made to
technological development, implementation and practice after the fact.
Regulation has had a largely technical and managerial focus, based on codes of
practice, the fulfilment of standard legal requirements, and the application of
privacy-protective technologies, leaving little room for anticipation.
Much regulation has been based on a narrow conception of personal privacy and
of its value to individuals alone, (necessarily) reflecting the current thinking of
policymakers who often implement a restricted view of what is in the ‘public
interest’.
Regulation has been discussed and implemented largely outside of public debate.
Debate has taken place within expert communities: for example, the world of data
281
Bennett, C. and Raab, C. (2006) The Governance of Privacy: Policy Instruments in Global Perspective, Cambridge MA: MIT
Press, ch. 9.
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•
•
protection or law-enforcement. This has meant very little engagement amongst
ordinary people with some of the most important issues of our time.
Regulation is often seen, in political terms, as a burden unfairly placed on
business as well as the state, inhibiting initiative, risk-taking and productivity. In
Britain, there has been a marked attempt at deregulation, or ‘better regulation’, to
lighten the load. Along with health and safety and environmental implications,
privacy protection and checks on surveillance are caught in this net, making it
difficult for new or more exacting requirements to be implemented. The
recognition that business and government may stand to benefit from the publictrust and efficiency gains that regulation may bring is very patchy in practice,
although more evident in rhetoric.
Media discussion concentrates heavily on ‘horror stories’ about incidents of
privacy invasion, and also portrays both utopian and Orwellian views about
surveillance technologies. Newsworthy stories are important, but too often, the
complex ethical and social issues around surveillance are ignored. When
surveillance is discussed, it is often in terms of either simple cause-and-effect
(‘CCTV will prevent crime’) or fear (‘we will all be under control’). Similarly,
alternative views are countered by the fallacious and dangerous argument that ‘if
you have nothing to hide, you have nothing to fear’.
41.2. These are among the main general and contextual difficulties that can be
highlighted in today’s regulatory environment; later on, we will comment on
problems with specific regulatory mechanisms Some of the general difficulties and
circumstances may be amenable to change, although with difficulty; others may not.
Yet the world of surveillance and privacy regulation has been far from inactive, and
its efforts have not been in vain, although serious doubts exist over the record of past
achievement and the prospects for the future.
42. The Current State of Regulation
42.1. For the past thirty-five or more years, privacy protection has spread round the
world as a response by countries and international bodies to perceived threats
coming from public and private sector activities that often have at their disposal
sophisticated technological means for processing personal data.282 Lying at the heart
of these developments have been some totemic principles, contained in a variety of
wordings in many laws and official documents. They require that an organisation:
•
•
•
•
•
•
•
•
must be accountable for all the personal information in its possession;
should identify the purposes for which the information is processed at or before
the time of collection;
should only collect personal information with the knowledge and consent of the
individual (except under specified circumstances);
should limit the collection of personal information to that which is necessary for
pursuing the identified purposes;
should not use or disclose personal information for purposes other than those
identified, except with the consent of the individual (the finality principle);
should retain information only as long as necessary;
should ensure that personal information is kept accurate, complete and up-todate;
should protect personal information with appropriate security safeguards;
282
‘Processing’ is defined here in accordance with Article 2(b) of the European Data Protection Directive 95/46/EC to mean:
‘any operation or set of operations which is performed upon personal data, whether or not by automatic means, such as
collecting, recording, organizing, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission,
dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction’.
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•
•
should be open about its policies and practices and maintain no secret information
system
should allow data subjects access to their personal information, with an ability to
amend it if it is inaccurate, incomplete or obsolete.283
42.2. Imbued with these or similar sets of ‘fair information principles’ (FIPs), the
regulatory world for governing privacy invasion and surveillance has been populated
by general laws, laws covering certain sectors (e.g., telecommunications) or practices
(e.g., data-matching), and international documents and declarations at the global and
regional level, of which perhaps the most prominent is the European Data Protection
Directive 95/46/EC, also reflected in the Telecommunications Directive (97/66/EC).
Regulatory authorities such as privacy and information commissioners have been
established at national, sub-national, and even regional levels, In addition, private
companies, trade associations, and public authorities have formulated their own
codes of practice and protocols, and online merchants have adopted privacy
statements or policies. In certain countries, non-statutory confidentiality rules and
laws have governed the surveillance practices of professions and others who process
personal data that are often highly sensitive. Penalties and sanctions have been
applied to offenders under the various forms of legal regulation. In recent years,
technological solutions – privacy-enhancing technologies, or PETs – have been
enlisted in the cause of limiting collection, providing anonymity, and otherwise
mitigating the surveillance potential of technology itself. Privacy advocates have
been vocal and active in warning of dangers, exposing practices, and raising public
awareness of how surveillance and privacy invasions may affect their lives. The
media have often responded to surveillance’s threats, even as the media itself finds it
profitable to invade the privacy of celebrities and ‘ordinary’ citizens alike.
42.3. In sum, there has been much interest and activity concerning surveillance and
privacy, and the community of persons and organisations involved in it is numerous
and widespread. Yet much doubt remains that even the best efforts, and the
principles itemised above, are weak in the face of the persistence and increasing
sophistication of classical, routine privacy invasions in the business sector, more
pervasive surveillance through the use of telecommunications technologies, and new
government policies that are predicated upon the processing of personal information
for a host of proactive, predictive approaches to solving social problems, based on
the processing of vast amounts of personal information. As people increasingly
move round the world – whether for business or leisure travel, or for immigration
and asylum-seeking purposes, or to commit acts of terrorism – surveillance
activities gain a heightened international, cross-border dimension that surpasses that
of the past.
42.4. These developments have fed a self-fulfilling, and sometimes self-serving
defeatism, expressed in the widespread attitude – cultivated by certain interests – that
‘privacy is dead; get used to it’, for it weakens the constituency of public, political
and business support that regulation might otherwise enjoy, and that it needs. So too
does the frame of mind that seeks always to balance the control of surveillance
against the public interest in safety and security in an age of fear – a ‘balance’ in
which the former is almost always bound to lose. The ‘reasonable expectation of
privacy’, which has come increasingly to define the framework within which
regulation is discussed and promoted, risks being deflated as people, including
today’s children – if, say, they are fingerprinted at school or for passport purposes,284
283
op cit. n.281, 12.
Doward, J. (2006) ‘Millions of children to be fingerprinted’. The Observer, 30 July,
http://observer.guardian.co.uk/uk_news/story/0,,1833407,00.html
284
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monitored by interoperative government databases, or tagged by their fearful parents
in order to track their comings and goings for safety reasons – ‘get used to’ more and
more limitations on their freedom from surveillance.
42.5. This Report is not the place for an extended discussion of the underlying theories
of surveillance that have been current over several decades. However, many of those
who have been studying surveillance have tended to question the emphasis on
privacy and its protection as the main arena in which surveillance is arbitrated, for
privacy itself is but one of the values at stake, and in the conventional understanding
is construed only, or mainly, in terms of individual rights and freedoms that are
enforceable at law.285 Building a practical system to control surveillance on the
slender and perhaps battered foundation of information privacy protection seems, to
many, to be misguided. To others,286 however, privacy and its protection is capable
of being extended to cover other, physically intrusive, situations in which there is an
asymmetry between the individual and the surveillors, as in video surveillance. To
take another example, the mobile tracking of workers and others ‘on the move’,
using sophisticated surveillance technologies, can be, and to an extent already is,
regulated by applying the classical principles to the practices of organisation and by
employing a range of regulatory instruments – described later – in a vigorous and
concerted way.287
42.6. We are not persuaded that, in searching for regulatory solutions to surveillance,
the baby should be thrown out with the bath water; or, to change the liquid metaphor,
that privacy principles and regimes are now, like King Canute, incapable of holding
back a supposed flood of surveillance. The set of ‘fair information’ data protection
principles is the only reasonably structured, systematic and practically oriented
ethical framework currently available.288 It is not credible to suppose that nearly
forty years of privacy protection has been a delusionary game played by legislators,
regulators and others who have focused on the wrong targets; or that those targets no
longer present threats. Many successes in regulating surveillance by means of the
privacy defensive perimeter can be credited to the existing protective regimes
established in and among jurisdictions, although, to be sure, the record is uneven and
the regimes are not all equally empowered. That said, it might be a delusion to
suppose that the conventional wisdom of privacy and data protection and the
practical measures to which it has given rise can still deal successfully with some of
the present and much of the future. In that future, what has been called ‘the new
surveillance’289, involving the latest suite of technologies, combines with elements of
the ‘old surveillance’ based on the technologies of the ‘computer age’. In a world of
ubiquitous computing, for example, it is difficult to see how a number of privacy
principles or fair information practices can be brought to bear effectively in a
regulatory capacity; but their applicability should not be casually written off.
42.7. Moreover, new surveillance practices increasingly entail discriminations and
other social ‘bads’ in ways that have powerful and inequitable effects upon lifechances beyond the realm of privacy violations themselves, which have
consequences mainly for individuals. It is arguable, therefore, that the regulatory
285
Lyon, D. (2001) Surveillance Society: Monitoring Everyday Life, Buckingham: Open University Press; Lyon (2003) op cit.
n.6.
286
e.g.: Dubbeld, L. (2004) The Regulation of the Observing Gaze: Privacy Implications of Camera Surveillance. Enschede:
Ipskamp Printpartners.
287
Bennett, C. (2005) ‘Surveillance, employment and location: Regulating the privacy of mobile workers in the mobile
workplace’, in Hansson, S. and Palm, E. (eds.), The Ethics of Workplace Privacy. Brussels: P.I.E-Peter Lang.
288
Bennett, C. (2006) ‘The mobility of surveillance: challenges for the theory and practice of privacy protection’. Paper
presented at the 56th Annual Conference of the International Communication Association, Dresden, 19-23 June, panel on
Individual and Social Perspectives of Online Safety.
289
Marx, G.T. (1998) ‘Ethics for the new surveillance,’ The Information Society 14 (3): 171-85.
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regimes for surveillance and privacy need to be re-thought and modified (at least) to
be able to affect the design, implementation, and effects of new, more intensive and
extensive, surveillance technologies. But the new surveillance is not just about
technologies. It can be claimed that the ‘problem’ for regulatory regimes is not only
how to cope with the technologies, but also how to influence the policies and
purposes of those who develop and deploy them, and how to influence societies and
populations who are subjected to them.
42.8. Privacy, therefore, might not be dead, but the jury is out on whether privacy
regulation, as we have known it for some thirty-six years, might be, when one
considers certain novel threats. Therefore, ‘new regulation’ may well be needed, not
as a wholly new social and governmental philosophy or practice, but as a
reconstruction that incorporates what is still sound and resilient from the recent past.
In 1998, Gary T. Marx290 argued that the data protection model was no longer up to
the job, and that it needed a more encompassing framework of ethical principles to
cover more than just information privacy, and to cover surveillance in a more
substantive way. These principles were implicit in the conventional model, but they
needed to be brought to the surface and related to the means, contexts and uses of
surveillance data. He propose some 29 questions to be asked in determining whether
surveillance conforms to ethical principles; we will argue later that this
determination has an affinity with privacy impact assessment (PIA). Whilst Marx did
not systematically specify which of the data protection or fair information principles
or practices were still relevant, which were not, and how they related specifically to
his inventory of questions and the principles they embodied, they are clearly not, or
not all, on the scrap-heap.
43. Regulatory Instruments: Pros and Cons
43.1. Let us briefly canvass, and comment upon, the existing repertoire of broad,
partially overlapping, categories of policy instruments that have been brought into
use for privacy and data protection, and therefore apply to large areas of surveillance
as well:291
43.2.
International instruments
43.2.1.
The European Convention on Human Rights, and other international
declarations, give legal and moral force to privacy protection that may play a
significant part in reining in the excesses of surveillance. More specifically, the
OECD,292 the Council of Europe293 and the EU294 are among the most prominent
contributors to the evolution of principles and rules for limiting surveillance and
invasions of privacy, mainly with regard to information privacy. These and
related documents have shaped specific legislative and implementation activity
in a very large number of countries and lesser jurisdictions. Some of these
international instruments have retained their moral force, although the value of
this asset is now questionable. Nevertheless, action at the international level is
largely responsible for the pre-eminence of the set of principles, already listed,
that have governed data protection, and by extension, many of the practices
associated with surveillance, for a long time.
290
ibid.
For a more detailed typology and discussion, see op cit. n. 281: chs. 4-7.
292
OECD (1981) Guidelines on the Protection of Privacy and Transborder Flows of Personal Data. Paris: OECD.
293
Council of Europe (1981) Convention for the Protection of Individuals with Regard to Automatic Processing of Personal Data
(Convention 108). Strasbourg: Council of Europe.
294
Especially European Union (1995) Directive 95/46/EC of the European Parliament and of the Council on the Protection of
Individuals with Regard to the Processing of Personal Data and on the Free Movement of Such Data, Brussels: OJ No. L281, 24
October [The EU Data Protection Directive]
291
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43.2.2.
The principles that were referred to earlier are inherent in the ‘privacy
paradigm’295 that we have inherited, and that is exemplified in most countries’
approaches. It is mainly a derivative and procedural construction that somewhat
obscures substantive, ethical considerations that lie in the background, although
they are not out of sight. It enjoins upon ‘data controllers’ a set of largely
procedural requirements for their processing activities, and therefore conveys
the impression that formal compliance will be enough to legitimise their
activities. It encourages a box-ticking mentality, rather than a more systemic,
and systematic, approach to fulfilling its values. Data protection laws are
written in accordance with this limiting framework, leaving official and other
regulators, as well as the courts, with the task of filling in or applying more
substantive considerations, sometimes drawn from Human Rights and other
legal or philosophical precepts, such as proportionality, necessity, fairness,
equality, and so on.
43.3.
Laws
43.3.1.
The global spread of legislative means to control personal-information
processing has proceeded rapidly from the 1970s to the present time. Many
countries have enacted sectoral and general laws for data protection, and most
of these laws have established some form of specific enforcement and
supervisory machinery. The latter, in the form of privacy commissioners and the
like, are essential to the entire effort to safeguard privacy. The USA remains
outside the ‘club’ of countries with comprehensive laws of this kind, thereby
weakening global efforts to regulate surveillance, except in a piecemeal and
patchy way. Sectoral and specific laws that control, for example, video
surveillance, data-matching, censuses, or the use of genetic data, may have
advantages in clarifying rights, but they also may override general proscriptions
in favour of more pressing matters of public interest and policy, thus weakening
protection. In some countries there are, in addition, common-law protections of
confidentiality that have regulatory force over certain kinds of surveillance or
invasive practices. The legal capstone, arguably, is human-rights legislation
based on international declarations, and privacy commissioners have seen this
as underpinning the legislation that they are charged with implementing. The
efficacy of judicial remedies and of enforcement machinery such as regulatory
agencies (e.g., privacy commissioners and ‘supervisory authorities’, in EU
terms) varies according to the nature of cases, the statutory powers and
sanctions available, the manner in which regulatory roles are performed, the
resources provided by governments for this activity, and the range of issues and
problems requiring an exercise of regulatory control.
43.3.2.
None of these conditions give ground for optimism about the sufficiency
of legal solutions, but their necessity seems in little doubt. They provide a
countervailing set of limits to surveillance practices that may be challengeable
on legal grounds – such as the disclosure to the CIA of customers’ banking
details in the SWIFT system of international financial transactions – and not
only on grounds of outrage that is likely to prove ineffective by itself. That said,
the weakness of many laws and their implementation machinery in the field of
personal information processing has long been a matter for complaint, so that
critics may have reason for impatience with legal solutions that may simply
295
op cit. n. 281, ch. 1.
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legitimate surveillance rather than regulate it.296 Moreover, privacy and data
protection laws do not easily regulate a wide range of surveillance practices,
such as those that are part of modern telecommunications, and cannot easily be
interpreted expansively to do so. There are also other laws, many of them
passed in the interests of law enforcement and combating terrorism, that
supersede or otherwise weaken the force of privacy laws; as discussed
elsewhere in this Report, telecommunications data are particularly implicated in
this. The role of courts and tribunals in determining the lawfulness of surveillant
information practices has been crucial, although not necessarily always friendly
to the cause of keeping surveillance and privacy invasion within tight limits. In
addition, the harm that surveillance may do to individuals, groups and whole
societies do not come within the range of impacts that these individual rightsbased laws are designed to remedy or prevent.
43.4.
Self-regulation
43.4.1.
A variety of codes of conduct or practice have been developed by
industries or companies, specialist bodies, and states, to regulate surveillance in
many domains of activity, including CCTV, the activities of professionals,
workplace monitoring, and so on. There are also online means of self-regulation
by merchants who trade over the Internet, in the form of online privacy
statements, ‘seal’ programmes and the like, backed up by organisations who
vouch for them. Self-regulation is sometimes written into laws, as are codes of
practice in the UK’s Data Protection Act 1998 and in the EU’s 1995 Data
Protection Directive 95/46/EC. Increasingly, however, self-regulation is
regarded as a better way of regulation given the ‘failure’ of laws and the lessregulated business climate that is considered desirable to foster.297 Sometimes
called ‘soft law’ or ‘soft regulation’, self-regulation prefers codes to legal rules
and self-reporting to externally-imposed inspection. Yet it is hard to imagine the
existence of codes and the like without the prior and parallel existence of laws
or international instruments that are the sources of the very norms and
guidelines that codes embody. The credibility and efficacy of self-regulation as
a principal tool of surveillance limitation has not yet been generally
demonstrated. It raises acute questions about accountability, supervision and
transparency that foxes in charge of henhouses are unlikely to welcome, and
that cannot be satisfactorily answered within the framework of self-regulation
by itself. Comment elsewhere in this report about self-regulation in the
telecommuncations field points out that there are many incentives for firms to
ignore codes and the like; more generally, the sanctions that can be imposed by
trade associations may not be severe enough to deter or punish their offending
members.298
43.5.
Privacy-enhancing technologies
43.5.1.
Where once the critics of surveillance pursued a strongly anti-technology
line of argument, a major development since the early 1990s has been the
realisation that technologies themselves can provide powerful controls over
surveillance or privacy invasion. This does not mean that ‘technology is
neutral’, but that the surveillance or non-surveillance potentials of specific
technologies depend upon how they are designed and deployed. Thus
296
Flaherty, D. (1989) Protecting Privacy in Surveillance Societies: The Federal Republic of Germany, Sweden, France,
Canada, and the United States. Chapel Hill NC: University of North Carolina Press.
297
US Department of Commerce, National Telecommunications and Information Administration (NTIA) (1997) Privacy and Self
Regulation in the Information Age. Washington DC: Department of Commerce, NTIA.
298
op cit. n. 281, ch. 6.
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encryption of personal data as it stored or flows across domains and other
boundaries can range from the nonexistent to the very strong, network design
and software ‘code’ can have a pronounced regulatory effect,299 and web
‘cookies’ can be filtered in order to prevent profiling. However, there are great
incentives for companies, governments and designers not to deploy ‘privacyenhancing technologies’ (PETs) in their systems, or to make individuals pay or
exert special effort to have them; or even to proscribe their use, as in the case of
strong encryption. Surveillance, many would argue, cannot be reliably regulated
through a ‘technological fix’.
43.5.2.
Some PETs are built into (or worse, bolted onto) ICT systems, whilst
others are available to citizens and consumers, especially as they surf the net
and engage in transactions, provided they have the knowledge, awareness and
inclination to make use of them, and sometimes of the financial resources as
well. Encryption, anonymous web-browsing, filtering devices, smart agents,
privacy-preference tools and the like may act as empowering instruments for the
individual. Whether, by themselves and as an alternative to other instruments,
they are strong solutions to online surveillance practices is far from assured.
43.6.
Individual self-help
43.6.1.
This is a further broad category of regulation, in which the individual
citizen or consumer controls her own information disclosure, possibly through
the use of PETs, the exercise of choice in online transactions where opting-in or
opting-out of certain information-processing procedures is offered, but also
through knowledge, awareness and vigilance concerning the surveillance
practices and privacy threats that befall her each day. All these put a premium
on the individual’s having sufficient interest in protection and the ‘cultural
capital’ – the ability and the means to comprehend what is happening, to resist
blandishments from information gatherers, to read obscure fine print on the
web, and to assert herself in controlling inroads or seeking redress once these
threats have been realised. In the USA, in the absence of regulatory or
supervisory agencies, self-help, including initiating legal action, is the dominant
means of privacy regulation, and criticisms of this model are legion. Other dataprotection systems rely to some extent on individuals bringing complaints to the
regulators and acting as frontline informants about dubious practices.
43.6.2.
Property-based and market solutions are among the most prominent
among self-help protections,300 but have also been heavily criticised,301 Market
solutions mean that one pays, or pays extra, for one’s privacy and one can sell
one’s information. Although solutions based on individuals’ ‘ownership’ of
their data could play a part in self-help, they may be limited in this role where
the determination of ownership is not clear in information systems or in the use
of certain technologies. However, although it is commonly argued that
individuals should, and can, take responsibility for their own privacy and
defence against surveillance, only a minority are probably able to exercise selfhelp as fully as ‘responsibility’ might imply, without a number of preconditions
having been put in place to assist persons in their self-help or ‘personal
299
Lessig, L. (1999) Code and Other Laws of Cyberspace. New York NY: Basic Books.
ibid.; Rule, J. and Hunter, L. (1999) ‘Towards property rights in personal data’, in Bennett, C. and R. Grant (eds.) Visions of
Privacy: Policy Choices for the Digital Age. Toronto: University of Toronto Press; Laudon, K. (1996) ‘Markets and privacy’.
Communications of the Association for Computing Machinery 39: 92-104.
301
Schwartz, P. (2000) ‘Beyond Lessig’s Code for internet privacy: Cyberspace filters, privacy control and fair information
practices’, Wisconsin Law Review 2000: 743-88; Rotenberg, M. (2001) ‘Fair information practices and the architecture of privacy
(what Larry doesn’t get)’, Stanford Technology Law Review http://stlr.stanford.edu/STLR/Articles/01_STLR_1
300
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economy of protection’. Individuals may wish to be ‘let alone’, as one
interpretation of ‘privacy’ would have it, but they cannot exercise controls ‘on
their own’.
43.6.3.
These, then, have been the main categories of surveillance-limiting,
privacy protecting instruments in use today. Further ones are being actively
considered and promoted: Contracts and binding corporate rules for data
transfers have also been prominent in the data-protection armoury. Other, less
specific instruments, or rather, categories of persons playing important roles in
the regulatory community, are significant as well, and may in fact be of crucial
importance within each of these major types or overarching them in making
general, society-wide contributions. We would here identify the activities of:
•
•
•
privacy and anti-surveillance pressure groups, which – along with
sections of the media – raise public awareness of issues and dangers,
monitor situations, and exert pressure upon governments and businesses
which make use of surveillance;
technologists, who design surveillance and information systems, and
whose education, training, and adherence to codes of practice may affect
the awareness of their employers and shape the products;
academic researchers, whose work may bring to light what is happening,
explain why it is happening, and develop and test theories about the place
and legitimacy of surveillance in the societies of the past, present and
future; thus contributing expertise to public debate.
44. General Problems Concerning Instruments
44.1. Three of the most important problems with existing regulatory practices can be
highlighted for discussion. The first two have to do with fragmentation and weak coordination. One problem concerns the main instruments; the other concerns the
welter of jurisdictional levels at which regulation is supposed to take place. For both,
the challenge is in terms of the potentially more unified and global surveillance
challenge that regulation may be expected to face, giving the likely persistence of
trends. For both, the question is how matters may be improved. In other words, can
fire be fought with fire?: if the forces operating to extend surveillance are
increasingly integrated and ‘joined up’, whether in any one country or
internationally, how well integrated are the instruments and the levels of
countervailing protective activity? The third problem is that of applying these
instruments to the social effects of surveillance – and, perhaps especially, ‘new
surveillance’ – beyond privacy invasion, or of fashioning new tools. For all three,
there is room for rethinking the panoply of regulation in terms of how it can be made
more coherent and effective. Full accomplishment of that task is beyond the scope of
this Report, although some ground can be broken on identifying the issues. There is
also room for considering the possibilities for privacy and surveillance impact
assessment to be applied at whatever level and within whatever field, domain or
sector of application. This, too, can only be indicated here.
44.2. Considering the instruments, those outlined above are usually considered as part
of a ‘toolkit’ of regulatory mechanisms. But this metaphor fails to address the actual
or desirable relationship of the ‘tools’ to each other, and how they can be better
integrated. Indeed, it may be inappropriate to borrow the idea of ‘tools’ in the first
place.302 Most of the tools in a toolkit normally operate independently of each other,
302
op cit. n.281, ch. 8.
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and are specific to a particular purpose. On the other hand, the regulatory ‘tools’ are
hardly independent, and are actually highly dependent upon each other if any of
them is to work optimally at all. For example, international instruments depend upon
national implementation and enactment. Laws depend upon the compliance of the
regulated which, owing to the elusive and covert nature of many of the processes that
are regulated, cannot be automatically assumed. Underpowered regulatory agencies
need the media and pressure groups to put the spotlight on surveillance abuses, and
need members of the public to bring complaints for investigation. They also need
general political and administrative support from the governmental systems in which
they operate, from their counterpart regulatory bodies in other jurisdictions, and from
the business sectors that they both regulate and encourage to improve practices.
44.3. For their part, self-regulatory codes of practice may be more effective if laws and
regulatory agencies require them or encourage them into existence in ‘co-regulation’
schemes, and may in turn require the willingness of participating organisations (e.g.,
firms in a trade association, or CCTV operatives) to adhere to them through staff
training. Privacy-enhancing technologies may, or may not, be engineered depending
upon the specifications of those – for example, governments – who procure the
information and communication systems into which they may be designed.
Technology designers rely upon market demand from industry and the public for
their privacy-enhancing products, as the failures of many sophisticated anonymity
and encryption tools has shown. Other illustrations of the ‘toolbox’ point about
interdependency could be elaborated as well. The point is that the synergies and
conflicts among the various instruments have not been adequately identified or
recognised in practice, so that their potential as ways of regulating privacy invasions
and the wider consequences of surveillance remains to be explored in depth.
Moreover, it is not yet clear who, if any one, is to take responsibility for fostering the
interdependent use of these instruments, or for designing their synergy in better
ways.
44.4. Related to this last point, the second main problem, we argue, is that it is
increasingly insufficient to consider that regulation takes place only, or mainly, at
the level of each national (or other, whether smaller or larger) jurisdiction. The
nation-state has been the main site of regulatory activity for some very good
political, legal, economic, social and cultural reasons. The presence of international
instruments and documents has been felt at the national level in terms of legislation,
sometimes in implementation of international requirements, as in the case of EU
Member States’ transposition of EU Directives into national law. Sometimes, a
foreign template or model for national legislative approaches has been adopted
without such compulsion but where a country has experienced a ‘ripple effect’ and
learned or borrowed from other countries,303 or where solutions have been enjoined
upon it by the actions of other countries or groups: the ‘Safe Harbor’ agreement
between the USA and the EU is a case in point.
44.5. By and large, countries have not had to reinvent wheels; regulatory precedents
and experience beyond national or jurisdictional boundaries have been a source for
learning – or, indeed, for ignoring – worldwide. Be that as it may, regulation does, or
may, take place at and across a series of levels or intersecting arenas from the local
to the global and among different industries (e.g., telecommunications, marketing,
transport, public services), taking into account the range of instruments. For
example, and without comment on the effectiveness of the regulatory mechanisms
involved, some workplace surveillance practices may be regulated at the level of the
303
Bennett, C. (1997) ‘Understanding ripple effects: The cross-national adoption of policy instruments for bureaucratic
accountability’. Governance 10 (3): 213-33.
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enterprise, where codes of practice may apply; but also at the level of the country in
which it is located, if there are laws or overarching codes covering workplace
activity; and at the global level, from which the International Labour Organization’s
code of practice on workers’ privacy304 originates.
44.6. Looking in another direction, the EU is not the only ‘regional’ or global arena
that acts as a source or site of regulatory activity for some countries: the Asia-Pacific
region has recently developed a Privacy Framework, albeit criticised as being of a
low standard305, and the World Trade Organization is another high-level arena with
some potential regulatory force over certain global information flows and personaldata processing that have surveillance implications. The attempt to produce privacy
standards to be followed worldwide has had a chequered and politically highlycharged career,306 but nevertheless illustrates the way in which activity takes place
beyond the borders of single nations, potentially affecting both them and the
organisations that do business there, as well as their publics. Standardisation or
privacy protection, beyond that for technical information-system security and
including conformity assessment procedures for organisations, has been considered
by many to be an important regulatory step, although so far its claims have not been
strongly convincing in important policy arenas.
44.7. A further set of examples of international privacy-protection and surveillanceregulation activity at the regional level can be found within the EU and other
European institutions. The EU’s Article 29 Working Party, established under the
Directive 95/46/EC and comprising Member States’ commissioners, is noteworthy
for the volume and range of its reports, opinions, working documents and the like,
since 1997, on a host of topics that include the use of biometrics, video surveillance,
the transfer of passenger name record (PNR) data from the EU to the USA,
workplace surveillance, genetic data, RFID technology, and many more, totalling
well over 100.307 The establishment of the role of European Data Protection
Supervisor (EDPS),308 whose role includes monitoring ICT and other developments,
advising on and influencing European Community policies in regard to personal data
processing, and the evolution of global and lower-level networks, meetings and
discussions amongst privacy commissioners on important topics and technologies,
are among the ways in which activity relevant to regulation now transcends national
boundaries. Other international or European bodies, such as Eurojust,309 which
assists in the investigation and prosecution of serious cross-border and organised
crime, have their data protection officers and derivative rules for the protection of
personal data.
44.8. However, estimates of the efficacy of these levels of work in preventing or
remedying the more insidious forms of surveillance and privacy invasion can be
debated, especially in the current adverse climate of opinion about the precedence
that counter-terrorism and law enforcement must take over the values involved in
privacy and the limitation of surveillance. There are also many gaps among official
organisations in the development of roles, institutions, responsibilities and strategies
for safeguarding against surveillance. Moreover, whether or not regulatory activities
304
International Labour Organization (ILO) (1997) Protection of Workers’ Personal Data: An ILO Code of Practice. Geneva:
ILO.
305
Greenleaf, G. (2005) ‘APEC’s Privacy Framework: a new low standard’. Privacy Law & Policy Reporter 11: 121-4.
306
op. cit. n. 281, 105-8.
307
See: CEC Directorate General Justice and Home Affairs (nd.) ‘Art.29 Data Protection Working Party,’
http://ec.europa.eu/justice_home/fsj/privacy/workinggroup/index_en.htm .
308
See: EDPS (nd.) ‘Introduction,’ http://www.edps.europa.eu/01_en_presentation.htm ; EDPS (nd.) ‘Duties of the European
Data Protection Supervisor and Deputy Supervisor,’ ch.5.4, http://www.edps.europa.eu/01_en_sub_fonctions.htm#Chap_54
309
See: Eurojust (nd.) http://www.eurojust.eu.int ; EDPS (nd.) ‘Data Protection Officers appointed by the Community institutions
and bodies,’ http://www.edps.europa.eu/05_en_reseau_dpo.htm
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among countries and across these levels can be co-ordinated, and agreed opinions
used as the basis for effective influence in the governmental and world arenas in
which authoritative policies and decisions are made, is also not certain. In the EU,
national privacy-protection ‘supervisory authorities’ are enjoined to co-operate in
certain activities, and there is an active set of European and global networks that
share experiences and undertake investigations of specific topics and problems, so
that regulators can become more knowledgeable, more effective and more coordinated. However, complicated political pressures and situations largely govern the
fortunes of these and other forms of regulatory activity, although they do not nullify
them.
44.9. The third main problem is that the regulation of surveillance, including privacy
and data protection, has not kept pace with the advance of surveillance technologies,
practices and purposes. Neither the data protection principles nor the fragmented
condition of regulation machinery and instruments seem fully capable of meeting
challenges that are likely to be posed in the future from public, private and combined
sources. The advent of many new information and communication technologies
(ICTs), including the Internet and mobile telematics, and the coming environment of
AmI and ubiquitous computing that integrates many and varied surveillance devices,
puts a question-mark over the efficacy of regulatory concepts and instruments that
originated to handle issues in the age of the mainframe computer, or even of the
laptop, the mobile telephone, and the Internet. There is also the question, raised in
this Report’s discussion of telecommunications in the United Kingdom, whether the
overlaps between different national regulatory bodies, the confusion of
responsibilities, and diverse interpretations of crucial concepts and terms, only adds
to the difficulties or regulation. Moreover, the global nature of processes such as
telecommunications makes the allocation of regulatory roles among national and
international levels a pressing matter if uncertainty and weak control are to be
overcome.
44.10. Regulatory issues and prospects arising in the world of RFID chips, devices for
sensing, monitoring and tracking, biometrics and other technologies that will be
increasingly used in workplace and domestic environments, and in travel and
entertainment situations, are daunting. Online privacy,310 once considered to be at the
cutting-edge for privacy analysis, is not the end of the line for considering the
possibilities of regulating the design and use of information technologies that process
personal data. Online and AmI processes, moreover, interact, blurring the distinction
between them, just as ‘online and ‘offline’, ‘manual’ and ‘computerised’, ‘public
sector’ and ‘private sector’ are no longer robust binary divisions for regulatory
purposes. Codes of practice may be beside the point, and easily ignored, even if they
could be devised. The old standbys of notice, choice, opt-out, opt-in, privacy
preferences, privacy policy statements, privacy seals and the like may become
tomorrow’s irrelevancies in the world of information fluidity. Whether or not this
proves to be true, how responsibilities should be distributed, and on whose shoulders
they should fall, for improving consumer and citizen awareness and competence
concerning risks, means of protection, rights and remedies are likely to remain
important questions in the ‘new surveillance’ environment. So, too, will the question
of how the privacy of the less easily educable and the technologically less capable
can be protected; these, we should note, are not small and irrelevant minorities on
the margin.
310
Raab, C. (2006) ‘The safe online consumer: Addressing issues and problems’, Paper presented at the 56th Annual Conference
of the International Communication Association, Dresden, 19-23 June, panel on Individual and Social Perspectives of Online
Safety; Lace (ed.) (2005) op cit., n.6.
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44.11. These are not wholly new problems, in general: each generation of technology
has seemed to make obsolete, in whole or part, the regulatory strategies that were
devised for earlier ones. To some extent this has been anticipated, when, for
example, laws eschew any mention of a specific technology, such as ‘computers’, so
that they may remain relevant to technological change. But since at least the advent
and spread of the Internet, the convergence of technologies and the interaction of
online and offline information practices, the elasticity of regulatory regimes is sorely
tested. If information collection and further processing, including transmission, is
coming to be literally everywhere, both the capability of the instruments – even
where they work in harness with each other – and of the jurisdictional levels and
arenas – even if they were better integrated and rationalised – would be inadequate
for many purposes, although still highly relevant to the control of the kinds of
surveillance practices that are already familiar.
44.12. Moreover, insofar as the regulatory regimes that have evolved were designed
mainly to control information privacy as conventionally understood, doubt also
surrounds their ability to cope with the extension of surveillance in other domains
where it is the body, the use of space, and other facets of privacy that are involved,
as they are with many of the new technologies involved in the ‘new surveillance’.
The most coherent and elaborate repertoire of rules and techniques is concerned with
the protection of personal information, rather than personal movement, physical
presence in certain kinds of space, or bodily integrity as such, although these too are
involved in the processing of information and personal data and to that extent remain
governable by legacy regulatory systems. However, much ingenuity must be
exercised in bringing the surveillance of these kinds of human behaviour under
control by legal rules and understandings made for an earlier time, as many court
cases attest. The alternative – creating new laws for each new technology or
application – would only perpetuate the ‘patchwork’ nature of much privacy
regulation, creating an ever-proliferating bewildering forest of special regulations
that may go against the grain of pressures to simplify, unify and generalise controls.
Data protection has already gone down the track of generalisation, with its
comprehensive laws and multi-functional supervisory authorities, and has overcome
the mind-set that once conceived of the private and public sectors as separate zones
for regulation whilst the world, and flows of data, were working in the opposite
direction. That said, certain sectoral laws and codes of practice are useful in
conjunction with general approaches, and some of them are related to specific
technological practices, such as telecommunications and video surveillance. Yet it is
not easy to see how a family, such as the Joneses, would be able to employ a selfhelp repertoire against the ubiquitous and often surreptitious surveillance that occurs
in their daily life.
44.13. These three sets of problems may not be the only ones to be identified, but they
suffice to sum up many of the actual and potential shortcomings of regulation,
identifying challenges that must be met if surveillance is to be kept under control and
its adverse effects on a range of human values are to be mitigated.
45. Options for Future Regulation
45.1.
Privacy Impact Assessment
45.1.1.
We believe there may be considerable merit in adopting the approach of
privacy impact assessment (PIA) in the regulatory practices of jurisdictions at
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whatever level happens to be relevant.311 PIA may best be seen as an instrument
that those who propose new or revised information systems that process
personal data can use themselves to mitigate the potentially harmful effects of
these systems upon the privacy of the persons whose data are processed. Let us
consider existing PIA theory and practice, whilst not overlooking its possible
pitfalls and limitations.
45.1.2.
•
•
•
•
•
•
•
•
In simplified terms, a PIA may be seen as:
‘an assessment of any actual or potential effects that an activity or proposal may
have on individual privacy and the ways in which any adverse effects may be
mitigated’;312
‘a process. The fact of going through this process and examining the options will
bring forth a host of alternatives which may not otherwise have been
considered’;313
an approach and a philosophy that holds promise by instilling a more effective
culture of understanding and practice within organisations that process personal
data;
a form of risk-assessment, which therefore cannot escape the uncertainties of
identifying and estimating the severity and likelihood of the various risks that
may appear, to privacy, life-chances, discrimination equality and so on;
a tool for opening up the proposed technologies or applications to in-depth
scrutiny, debate and precautionary action within the organisation(s) involved;
like PETs, premised on the view that it is better to build safeguards in than to bolt
them on;
an early-warning technique for decision-makers and operators of systems that
process personal information, enabling them to understand and resolve conflicts
between their aims and practices, and the required protection of privacy above or
the control of surveillance;
ideally, a public document, leading to gains in transparency and in the elevation
of public awareness of surveillance issues and dangers may be realised; in turn, it
may assist regulatory bodies in carrying out their work effectively.
45.1.3.
It is therefore not only the resulting PIA report that is beneficial, but the
process itself. This technique is mandated in the USA and Canada for new
federal-level public-sector projects involving the processing of personal data.
Voices have occasionally been raised in the UK, calling for PIA to be applied to
specific projects such as identity cards. The Performance and Innovation Unit314
flirted with it in the context of data-sharing in the British public sector, and the
National Consumer Council315 recommended it for government and companies,
calling for an amendment to the Data Protection Act 1998 to require it, and for
the involvement of the Information Commissioner. A feasibility study was
conducted in Scotland for the application of PIA to government’s informationsystem plans for social care.316 But there is resistance to developing and
requiring an explicit assessment instrument in public organisations, even though
government’s profession to take privacy seriously in its long-standing ambitions
311
Stewart, B. (1999) ‘Privacy impact assessment: towards a better informed process for evaluating privacy issues arising from
new technologies,’ Privacy Law & Policy Reporter 5 (8): 147-149; a descriptive discussion of PIA is given in Raab, C., 6, P.,
Birch, A. and Copping, M. (2004) Information Sharing for Children at Risk: Impacts on Privacy. Edinburgh: Scottish Executive.
312
Stewart, B. (1996) ‘Privacy impact assessments’. Privacy Law & Policy Reporter 3 (4): 61-4.
313
Stewart, B. (1996) ‘PIAs – an early warning system’. Privacy Law & Policy Reporter 3 (7): 134-8.
314
Performance and Innovation Unit (PIU), Cabinet Office (2002) Privacy and Data-Sharing: The Way Forward for Public
Services. London: Cabinet Office.
315
Lace, S. (2005) ‘The new personal information agenda’, in Lace (ed.) op cit. n.6: 217-9.
316
Raab, C. et al., op cit. n.310.
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for e-government and IT-led public service implicitly incorporate something of
the spirit, albeit not the letter, of PIA.
45.1.4.
There are many and diverse models for implementation,317 although they
cannot be described here. The routines of applying a PIA require promoters of
initiatives to understand, in detail, the flows of data in and around their systems,
and to address issues beyond mere legal compliance, although some version of
the inventory of principles, discussed above, is typically used as a basis. PIA
should not be confused with compliance audits and the like, which are usually
ex post facto and legally-oriented; as with environmental impact assessment,
PIA assesses the likely impact of technology applications or new systems in the
future, and considers a wider range of criteria. A growing practical literature has
developed since the 1990s, largely related to the efforts of some privacy and
data-protection regulators to develop and implement, or to encourage, the
adoption of PIA as a precautionary instrument for assessing the likely impact
upon privacy of new technologies or proposed information processing systems
and practices.318 One line of thought is that PIA could help to relieve the burden
placed on regulatory officials to ensure the compliance, at the very least, of data
controllers with laws and principles, and to deal with complaints from data
subjects, by contributing to the design of technologies or practices is such a way
as to reduce the adverse impact upon privacy.
45.1.5.
Information systems and new ways of working in and across agencies are
often put in place without a proper understanding of privacy requirements or
other effects. Not having built safeguards into the processing of personal data,
operators are then faced with having to add them, which is not always possible
without expensive and embarrassing stratagems which may detract from the
functionality of the system. For policy-makers at higher levels, PIA helps to
ensure that the information systems established in the implementation of
policies mitigate dangers (at least) or enhance benefits (at most). PIA assists the
citizen in limiting the extent to which complaints and the search for remedies
have subsequently to take place if a system or practice violates data protection
or human rights requirements. PIA can therefore act to reassure citizens that the
processing of their data, or other surveillance practices, are well protected or
minimised; in so doing, PIA assists in the maintenance or creation of trust.
45.1.6.
There is considerable political and administrative impetus towards
surveillance, with privacy, confidentiality and human rights often seen more as
an obstacle or as a restraint which, in the ‘balance’, should be accorded less
weight. PIA may help to show how privacy protection can be accommodated
within an information-sharing scheme as an important ethical and legal
requirement that may contribute to important social and political objectives,
317
A few examples are: Office of the Information and Privacy Commissioner of Alberta (2001) Privacy Impact Assessment: Full
Questionnaire: Government of British Columbia Ministry of Management Services (2003) Privacy Impact Assessment (PIA)
Process. Victoria: Government of British Columbia Ministry of Management Services; Ontario Information and Privacy Office
(2001) Privacy Impact Assessment – A User’s Guide. Toronto ON: Management Board Secretariat, Ontario Information and
Privacy Office; Office of the Privacy Commissioner, New Zealand (2002) Guidance Notes: Privacy Impact Assessment
Handbook Auckland: Office of the Privacy Commissioner, New Zealand; Treasury Board of Canada Secretariat (2002) Privacy
Impact Assessment Guidelines: A Framework to Manage Privacy Risks, Version 2.0, August 31. Ottawa, ON: Treasury Board of
Canada Secretariat; United States Department of the Interior, Office of the Chief Information Officer (2002) Department of the
Interior Privacy Impact Assessment and Guide, Version: 9.16.02. Washington DC: United States Department of the Interior,
Office of the Chief Information Officer.
318
A useful general resource is Clarke, R. (nd.) Privacy Impact Assessments
http://www.anu.edu.au/people/Roger.Clarke/DV/PIA.html . See also: Waters, N. (2001) ‘Privacy impact assessment – traps for
the unwary,’ Privacy Law & Policy Reporter 7 (9): 176-7; White, F. (2001) ‘The use of privacy impact assessments in Canada’,
Privacy Files 4: (7/8).
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such as better, more citizen-oriented public service, or security, and not as an
obstacle to them.
45.1.7.
We can summarise and continue the discussion by itemising what PIA is
not. It is:
•
•
•
•
•
•
•
•
•
not a mere compliance tool: its proponents see it as a way of improving
practice beyond the minimum necessary to conform to legal
requirements;
not an auditing mechanism: it assesses the impact of new and proposed
systems, ideally before they are implemented;
not, in most jurisdictions, a legally binding or definitive document: it
may be influential or persuasive, and in some places (USA; Canada) the
requirement to carry out a PIA is already a legal requirement;
not imposed from outside: ideally, it is performed by, and ‘owned’, by
stakeholders within an organisation;
not a once-for-all process: it is subject to revision as systems or
circumstances change;
not a way of stopping the processing of data: it aims to facilitate it by
analysing the privacy or surveillance risks and eliminating or mitigating
them;
not primarily a way of assessing risks to the organisation: the main aim
is to reduce the risks to the data subject, although the organisation’s risks
are also considered;
not a universal template: although there are exemplars; the PIA should be
tailored to assess the information processes of the particular organisation;
not a tick-box exercise giving an answer or ‘score’ at the end: it is a way
of raising questions that need to be answered and highlighting issues that
need to be resolved.
45.1.8.
It is also not a ‘magic bullet’ capable of being incorporated into business
or state operations without financial costs and changes in working practices,
although the avoidance of expensive mistakes and the political, reputational and
trustworthiness gains should be set against these outlays. It may not be easy to
undertake a PIA, nor does it promise an easy ‘fix’ for the dilemmas involved in
decisions about implementing surveillance. Common failings are a perfunctory,
compliance-oriented and box-ticking approach to investigating effects; a feeling
of alienation from the process, particularly if the PIA is not led and championed
from within the organisations concerned; and a disconnection between the PIA
process, its results, and crucial decisions. Ideally, a PIA tells the story of an
information system or technological application: ‘why it exists and how it
collects, uses, discloses, and retains personal information. In this process,
specific privacy issues are surfaced and can be resolved in a comprehensive
manner on the basis of clear thinking and accurate information’.319
45.1.9.
On the other hand, it may be difficult to ascertain all the required facts
about a system, and the risk-assessment that lies at the heart of PIA cannot be
straightforward. Risks may be difficult or impossible to quantify, although the
PIA discipline presses those involved to explore, discuss and perhaps debate the
question of risk publicly, rather than simply assuming conventional
understandings. PIA thus promotes reasoned approaches to the relationship
319
Flaherty, D. (2004) ‘Privacy impact assessments (PIAs): An essential tool for data protection’. Paper presented at the Privacy
Laws & Business 17th Annual Conference, Cambridge, 5-7 July, 2.
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between privacy and other, sometimes competing, priorities. In so doing, it may
strengthen transparency and accountability. PIA should not be a once-for-all
exercise: the result should be capable of updating as systems change, as they
inevitably do. When one is considering a PIA approach to joined-up, interorganisational working and information-sharing, the difficulties may be
multiplied. However, the systematic questioning that PIA involves may be a
strategic point of entry into a host of issues concerning information
custodianship, leadership, roles, protocols, and so on, which are already
considered essential to good organisational, and inter-organisational, practice.
45.2.
From Privacy Impact Assessment to Surveillance Impact Assessment?
45.2.1.
To encompass the potentially harmful effects of surveillance on a wider
basis than that of protecting privacy, it would be necessary to develop PIA tools
beyond their existing configuration, and to develop what could be called
surveillance impact assessment, or SIA. This, of course, involves a change of
meaning, for whereas PIA assesses impacts of information processing on
privacy, SIA would assess the impacts of surveillance on a range of values that
may include, but also transcend, privacy itself.
45.2.2.
An important drawback, but also an opportunity for further development,
has to be recognised. Here we return to our earlier remarks about privacy
protection and its relation to surveillance protection. Because PIA has been
innovated as a tool for looking at privacy, conceived in terms of individual
rights, it is not at present best suited to embrace the further ramifications of
surveillance in terms of a range of other social and personal impacts. Doing this
would require something of a paradigm shift from considering only the effect
on individuals, as privacy policy tends to do, to considering the value of privacy
protection and surveillance limitation in societal terms as well.320 Privacy is not
only an individual value, but is also important for society as a foundation for the
common good and for values held in common, such as democracy, trust,
sociability, and a free and equal society. This is occasionally, but not certainly,
reflected in the approaches taken by official privacy regulators, enlightened
companies, and privacy advocates. Because the value of privacy extends
beyond the individual, we all have a stake in the right, and the ability, of any
individual to have her privacy protected by whatever instruments. Both privacy
itself, and privacy protection, are socially valuable, embracing common, public
and collective dimensions. Albeit an individual value and a human right,
privacy is also a common value because all persons have a common interest in a
right to privacy even though they may differ on the specific content of their
privacy or what they regard as sensitive. It is a public value in that it is a
sustaining principle of a democratic society. It is a collective value insofar as it
is – in some respects and with some regulatory instruments – a collective good
that cannot be divided, from the protection of which individuals cannot be
excluded, and which cannot be efficiently provided by the market. 321
45.2.3.
If this is so of privacy, it is emphatically so of surveillance and its
regulation, because many surveillance practices have a direct effect on the
nature of the society in which they are embedded, in terms of categorical
discrimination (or empowerment), social exclusion, and other outcomes that
would still be causes of concern even if the invasion of individual privacy were
not in question. PIA, and privacy regulation as a whole, would benefit from
320
321
Regan (1995) op cit. n.14, ch. 8.
ibid.
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taking on board the social value of privacy. Nevertheless, taking social effects
into consideration would be a sea-change in the world of privacy protection, its
instruments and its regimes. There may not be many national or other
jurisdictions’ privacy regimes that would regard it as legally or politically
possible to expand their horizons, and specifically the roles of regulatory
participants, to embrace these broader effects, which are more palpable when
considered in the idiom of surveillance. The regulation of surveillance has as its
main objective the safeguarding trans-individual, social values, in addition to
individual privacy values. This is why SIA could play a valuable role by
incorporating PIA but transcending it with a range of enquiries aimed at
assessing the impact of surveillance, or privacy invasion, upon society itself and
upon the other, non-privacy, interests of separate individuals, categories and
groups.
45.2.4.
There are precedents for expanding the horizons in other fields:
environmental impact assessment has become embedded in governance
arrangements that previously only had, say, food-production, transport, energy
supply, industrial or housing development as their remit and responsibility. The
impact of government policies upon ethnic or racial minorities is now also
recognised as something that needs to be taken into account. What an ICT
innovation, a new database, or a new audio-visual scheme for monitoring public
places or private shopping precincts, implies for personal autonomy and dignity,
social solidarity, or the texture of social interactions, is not an inconceivable
line of enquiry that could become institutionalised as a set of practices and
requirements before those surveillance possibilities are implemented.
45.2.5.
We made mention, earlier, of Marx’s questions concerning the ethics of
surveillance: these could lend themselves to SIA as a development of PIA, and
we append them to this section of the Report. Adapting questions such as these
to assess surveillance’s impact takes the enquiry into realms of where the
means, the data collection context, and the uses of surveillance are assessed for
their impact upon individuals and communities in terms of physical or
psychological harm, inequitable distributions of processes, power imbalances,
and many others, including standard data-protection compliance criteria of
awareness, consent, redress, sanctions, purposes, and so on. This repertoire is
rooted in a mainstream ethical stance, but also in a certain legal framework that
has already been established through the international instruments and laws that
we have already seen, so that wholly new foundations need not be laid for
something like this type of enquiry to inform SIA, and indeed PIA. Whether
new political foundations would need to be laid is a question to be addressed in
states and other entities, and is not for this Report.
45.2.6.
We cannot demonstrate at length, in this Report, how SIA would be
applied in practice, but some of Marx’s questions can be highlighted as the
kinds of question that an SIA would ask, apart from those questions – the
majority – that are more directly related to privacy as such. For example,
enquiring about harm (‘does the technique cause unwarranted physical or
psychological harm’ or ‘disadvantage’?) taps into the implications for personal
well-being that may not necessarily be remediable under data protection laws,
or addressed by other laws that protect privacy. Enquiring about the
beneficiaries (‘does application of the tactic serve broad community goals, the
goals of the object of surveillance, or the personal goals of the data collector?’)
is not designed to discredit the latter two, but to gain a purchase on the
implications of the surveillance technique so that the enquirer knows where the
investigation should go next. Enquiring about the consequences of inaction
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(‘where the means are very costly, what are the consequences of taking no
surveillance action’?) is aimed at assessing the necessity of the surveillance, not
merely its feasibility and desirability.
45.2.7.
These are only some illustrations of the line of investigation that an SIA
could take, and it is obvious that it would range more widely than questions
about legal compliance or even about personal privacy. Any SIA, like any PIA,
would have to be tailored to the specific characteristics of the practices or
technologies in question,322 although there would be a broad, basic similarity
among investigations across an array of practices, because they have much in
common and because there are common legal or ethical requirements that they
would have to meet.
45.2.8.
As mentioned earlier with regard to PIA, one advantage that SIA could
have is in assisting regulatory agencies and individual citizens to understand
and control surveillance practices by making them more transparent and their
proponents more accountable. These, in fact, are among the principal aims of
freedom of information (FOI), which forms part of the enforcement
responsibilities of a number of privacy regulatory bodies or of commissioners
established specially for that purpose. If SIAs were required of firms or public
organisations and made public as the basis of further discussion as well as
approval, they would play a part in opening up surveillance to public scrutiny
and comment. Moreover, as many have argued with regard to PIAs, there are
benefits to the organisation’s understanding of its own practices and how they
can be improved in order to make them more compliant with the law, with
codes of practice limiting surveillance, and/or with the image of integrity and
trustworthiness that the organisation is trying to project.
45.3.
Other Options
45.3.1.
If SIA builds upon PIA, other options also build upon the present. We
have in mind, especially, how privacy commissioners and other regulators can
expand their role – if their political systems will make it possible to do so – to
embrace the regulation of surveillance more widely conceived. There are no
recipes for overcoming many of the difficulties that privacy commissioners
have experienced, in many countries, in exercising their authority under existing
legislative enactments at whatever jurisdictional level, and between them.
Moreover, there are specific problems with the exercise of these regulatory
roles that may not have been experienced everywhere.
45.3.2.
In the face of the ‘new surveillance’ but also with regard to conventional
challenges, we think it would be in order for regulators to have more powers
and resources, more sanctions available to them for use, greater influence over
government policy and business plans, less burdensome routine requirements,
and greater public visibility. This is likely to be read as a wish-list to which few
members of the regulatory community would object, but it would be unrealistic
for this Report to put forward more specific recommendations of this kind as a
shopping list addressed to no-one in particular, or pertinent to no situation in
particular. That said, it is possible to enumerate some particular improvements
that seem desirable and also, in many cases, feasible; or at least to indicate
where a reconsideration of the regulatory environment and process might be in
322
A brief discussion, in the context of AmI, is in Raab, C. (2006) ‘Regulating ambient intelligence: The road to privacy impact
assessment?’ Paper presented at the International Conference on Safeguards in a World of Ambient Intelligence (SWAMI),
Brussels, 21-22 March.
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order. These relate to the six areas of difficulty that were identified at the
beginning of Part D:
96
•
Reactive regulation: official regulators have often been taken unawares
by business or governmental ICT or systems proposals that pose potential
threats to privacy or that have ominous surveillance capabilities.
Regulators, whether official or civil-society members of the privacy and
surveillance policy community, may be sidelined from the policy and
decision arenas in which these plans are developed and implemented, or
may enter them too late to have influence upon them. PIA or SIA may
help in fostering a more proactive regulatory approach, but only to the
extent that access to policies and plans occurs early enough. As far as
regulatory agencies are concerned, it would be helpful if their early
intervention and scrutiny were supported by statute or other binding
requirement. But the ability to enter the arena is, in many cases, only as
good as the regulators’ ability to keep abreast of, and knowledgeable
about, new technologies and systems; for this, their institutional
capabilities may need improvement, which would have resource
consequences. These may be difficult to be borne at the level of each
jurisdiction. Therefore, it is advantageous further to develop a pooled
technological knowledge-and-awareness capability, as may be occurring,
for instance, at the level of the EU, through the Article 29 Working Party
and other networks and channels in which many national and subnational regulators participate.
•
Technical and managerial regulation: an antidote to the procedural
emphasis of much regulation, mentioned as the second area of difficulty,
would be partially found in these strategies and instruments. They would
assist anticipation as well as, in the case of PIA and SIA, help
surveillance proposers to mitigate undesirable effects through
organisational change, staff training, privacy-friendly informationmanagement improvements, and so on. This would help to put law-based
regulatory approaches into a wider context of strategy; this may already
be present in many regimes, although probably less so at the international
level, but needs to be underpinned. It would also be helpful if the
movement to develop privacy standards at the international level were to
gain impetus; standardisation would simplify the regulatory burden
placed upon official agencies and would assist in organisations’ efforts at
self-regulation, as well as providing a measure of public assurance. This
might be especially useful in the context of new technologies and
information processing that is based on them. It would also demonstrate
useful synergy between some of the regulatory instruments described
earlier.
•
The conception of ‘privacy’: we have already remarked on this,
explaining the need for a wider view of, broadly speaking, the social
value of privacy as it is implicated in safeguarding privacy and limiting
surveillance. The notion of the ‘public interest’ is also implicated in these
conceptual problems, especially where privacy and the public interest are
placed in adversarial positions by the way political and regulatory
discourse, not to mention public debate, is constructed. Serious
reconsideration of these concepts, and of their relationship in specific
contexts, could help to underpin the way in which privacy principles are
invoked and also extended to cover novel situations presented by the
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‘new surveillance’. Otherwise, privacy and the limitation of surveillance
is highly likely to be the loser in any ‘contest’.
•
Public debate: the level of public debate about privacy and surveillance is
very low in general, and, with exceptions in some countries or at some
times, disconnected from current government policy proposals or
commercial innovations. There seems to be a ‘Serious’ debate and public
debate are largely separate worlds, although there are many weblogs in
which important debate is carried on and engaged with current proposals.
It would be useful to undertake an assessment of the existing role of the
conventional and ‘new’ media, of civic organisations and professional
associations, of academia, and of other organs of debate and
communication, in encouraging public knowledge, awareness and debate
beyond the often tendentious approaches of business, governmental
interests and pressure groups to sway public opinion in one direction or
another. Improvements might follow such an assessment; but a danger in
implementing these might be a tendency to patronise and ‘enlighten’ the
general public, which, in the case of the ‘public understanding of science’
has often had deleterious results.
•
The burden of regulation: there are, indeed, costs of privacy and
surveillance regulation and costs of compliance. There needs to be an
independent assessment of what these are and who bears them, and a
judgement made, on the basis of explicit and agreed criteria, of whether
these costs are ‘excessive’, whether they ‘outweigh the benefits’, whether
they actually do ‘inhibit initiative, risk-taking and productivity’, as is
often claimed. On the other side of the coin, the benefits of regulation
need similar rigorous analysis. It can be said that the gains in public trust
and organisational efficiency that may come from good privacy
protection and surveillance regulation are only recognised to a limited
extent; but they, too, require impartial analysis. However, the economics
– or political economy, for it is not just an ‘economic’ question, but one
of political and social values more generally – of privacy and surveillance
is an underdeveloped speciality, and there is probably no off-the-shelf
model that can be adopted without serious adaptation. If that is so, it is
perforce so of what is often seen as the third step: ‘balancing’ the costs
with the benefits. We are far from persuaded that the ambiguous doctrine
of ‘balance’, which pervades privacy protection practice and rhetoric, can
stand up to serious scrutiny, but it should be exposed to it.323
•
Media discussion: the mass media’s treatment of privacy and surveillance
issues tends to be dominated by clichés, an oversimplified ‘contest’
mentality, the latest ‘horror story’ about how the failure of organisations
to exploit personal data has led to tragic deaths, or (conversely) how
‘they’ are surreptitiously building large databases, and the like. As
mentioned above, taking stock of the role of the media is in order, as is
the consideration of what role it is able to play in future. Complex ethical
and social issues, as well as technological developments, are very
difficult to discuss in the press, broadcasting, and in other media, and, in
any case, ‘the public’ as well as ‘the media’ are segmented and highly
varied. These pose formidable tests for any attempt to elevate the tone of
the media.
323
Raab, C. (1999) ‘From balancing to steering: New directions for data protection’, in Bennett and Grant (eds.) (1999), op cit. n.
299.
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45.3.3.
Finally, something should be said about the way regulation could be
improved through a consideration of how adequate the relationships, and the
interdependence of tasks, are between regulatory systems at different levels up
to the global, and between different kinds of participant, including regulatory
agencies and groups in civil society. We have hinted at this question with regard
to telecommunications. It is difficult to say much about this matter in the
abstract, but it remains for further discussion how far, for example, the cooperative relationships that were indicated in the EU Directive 95/46/EC have
served not only enforcement and compliance purposes, but intelligencegathering and issue-awareness on the broader front of surveillance practices and
technologies. Or, for another example, how far there is a mutually productive
relationships between regulatory agencies and civil-society groups that both
assist these agencies when the latter draw issues and useful information or
knowledge to their attention, and act as a gadfly when regulation appears to
falter or when government and business practices seem to extend surveillance.
Whether there is room for further innovation of independent roles in the
regulatory system, apart from committed regulators and committed antisurveillance advocates, is another matter for exploration beyond this Report,
which perhaps serves as one kind of illustration.
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